IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL
IN AND FOR PINELLAS COUNTY, FLORIDA
ESTATE OF LISA MCPHERSON, by and
through the Personal Representative,
Plaintiff Case No. 00-5682-11
CHIURCH OF SCIENTOLOGY FLAG
SERVICE ORGANIZATION, JAN1S
JOHNSON, ALAIN KARTUZINSKI, and
DAVID HOUGHTON, D.D.S.
ORDER DENYING DEFENDANTS OMNIBUS MOTION FOR
TERMINATING SANCTIONS AND OTHER RELIEF
This cause came on to be heard on Defendants' Omnibus Motion for Terminating Sanctions and Other Relief, which was served on April 26, 2002. The motion requested the following relief, both cumulatively and in the alternative: (1) striking of plaintiffs complaint; (2) an order precluding plaintiff from answering the counterclaim, and defaulting plaintiff on the counterclaim; (3) dismissal of plaintiffs claims with prejudice; (4) disqualifying plaintiffs counsel from representing plaintiff on any matter in these proceedings; and (5) awarding sanctions, in an amount to be determined, against plaintiff and her counsel. The Defendants' motion was 7 pages in length, and had attachments including a 35-page hearing transcript of a continuation of a Robert Minton (“Minton”) contempt hearing before The Honorable Douglas Baird on April 9, 2002, a 352-page transcript of a hearing conducted on April 19, 2002 which was the beginning of a Motion to Disqualify Plaintiffs Counsel, Kennan G. Dandar (“Dandar”) and law firm, Dandar and Dandar, P.A., on a related case pending in front of Judge Baird, Church of Scientology Flag Service Organization, Inc., Plaintiff vs. Dell Liebreich, Individually and as Personal Representative of the Estate of Lisa McPherson, Robert Minton, and the Lisa McPherson Trust, Defendants, Case No. 00-002750-20, the breach of contract and tortious interference case, (“breach” case) a one-page e-mail which had been introduced at the hearing on April 19, 2002, and the first recanting affidavit signed by Robert Minton on April 17, 2002, which was used in both this case and the breach case. This first affidavit was brief, recanting certain limited testimony previously given. The Defendants' motion indicated that they were working on a more complete Memorandum of Fact and Law, which would be filed as soon as it was completed.
On April 30, 2002, the Defendants served their Memorandum of Fact and Law in Support of Omnibus Motion for Terminating Sanctions and Other Relief. This memorandum was 55 pages and was accompanied by 72 exhibits, contained in a notebook, approximately 4-inches thick. Two of the Exhibits were the second recanting affidavit of Robert Minton, dated April 24, 2002, and the second recanting affidavit of Stacy Brooks, dated April 29, 2002. Ms. Brooks had also previously filed a brief first affidavit recanting certain limited previous testimony on April 17, 2002.
On May 1, 2002, the Plaintiff filed her 5-page Response in Opposition to Defendants' Omnibus Motion for Terminating Sanctions and Other Relief, with 4 Exhibits, comprising 8 pages.
On May 2, 2002, this court held a hearing wherein the motion was argued. It was determined that a full hearing should be held in order to resolve all the matters raised in Defendants' motion.
On May 3, 2002, testimony on the Defendants' motion commenced. It ended July 18, 2002. The hearing totaled 35 days. Several hundred exhibits were introduced. The transcripts of the hearing comprise many thousands of pages, and were provided to this court in six 4-inch binders of 4 to a page transcripts.
Throughout the hearing, various “Supplemental Memorandum”, “Bench Memorandum”, “Time Lines”, and other materials were produced for the court's assistance. Some of these were several 4-inch binders of materials.
Closing arguments were permitted to be submitted in writing. As the Defendants bore the burden of proof on their motion, they were allowed first and last closing argument. The Defendants’first closing argument, dated August 9, 2002, was 137 pages, and was accompanied by four 4-inch binders of 149 exhibits. There were also Appendices A-K attached. The Plaintiffs closing argument was submitted August 19, 2002, and was 147 pages with 5 Exhibits. The Defendant's Reply to Plaintiffs Closing Argument was submitted August 26, 2002, was 64 pages, and was accompanied by 65 Exhibits, and an Appendix with 27 Exhibits.
This court has now read all of the closing arguments, exhibits, and appendices, has reviewed many portions of the transcripts of the 35-day hearing, has reviewed some of the hundreds of exhibits introduced at the hearing, and, most importantly, was present to see and hear all the witnesses who testified during the 35-day hearing. Based on all of the above, this Order follows.
The Defendants (collectively for this order, the “Church”) accuse the Plaintiff (the “Estate”), and her counsel, Dandar, of “manipulation of the judicial process through the filing of false and/or misleading pleadings, affidavits, testimony, and obstruction of discovery by Dell Liebreich, (“Liebreich”), her counsel, Ken Dandar, various members of the plaintiffs ‘trial team', and Robert Minton.” Defendants' Motion, p. 2. The Defendants then say that the “pattern of misconduct” is evidenced by the “recent admissions of Robert Minton and Stacy Brooks”. Motion, p. 2.
The main allegations which need to be discussed in this order are as follows: (1) Is the 5th Amended Complaint—the one at issue in this motion (it has subsequently been amended by agreement of the parties and the court) a “sham” or “mere pretense”, one which “perpetrated a fraud on the court which permeates the entire proceedings”, Motion, p. 2, in which case dismissal of the entire case may be proper. (“Sham Pleading”). (2) Did Ms. Liebreich and/or her counsel, Kennan Dandar, commit perjury, or suborn perjury, such that the case should be dismissed or other relief requested should be granted? (“Perjury/Subornation of Perjury”). (3) If counsel for the Plaintiff committed perjury/subornation of perjury, should counsel be disqualified? Even if Dandar did not commit perjury, or suborn perjury, is the “appearance of impropriety” of Dandar's conduct such that Dandar should be removed as the Estate's chosen counsel to represent it at a trial presently scheduled to begin January 21, 2003. (“Disqualification of Counsel”).
Lisa McPherson died on December 5, 1995. Until just before her death, she had been present for 18 days at the Fort Harrison Hotel, which is property owned by the Church, and where the Church is located in Clearwater, Florida. During her 18-day stay at the Church's property, Lisa was under the exclusive care, custody and control of the Church, by and through Alain Kartuzinski, the acting senior case supervisor, and thus, the head ecclesiastical leader of the Church. After her first day at the Church, Lisa was psychotic, and unable to make important decisions for herself, including medical decisions. Her death was caused, depending on which set of experts is believed, the Plaintiffs experts, who say Lisa died from severe dehydration, or a pulmonary embolism brought on by severe dehydration, or the Defendants' experts, who say Lisa died from a pulmonary embolism, brought on by a bruise from a minor accident Lisa had the day she was brought to the Church. The manner of death was either a homicide, according to the Plaintiffs experts, or an accident/natural death, according to the Defendant's experts. These facts lead to Plaintiffs two alternative theories in two counts of the complaint: Count I, Wrongful Death, and Count V, Negligent Survival. This court, in orders previously filed, has denied summary judgment motions filed by the Defendants as to both of these counts. It should be noted that the Defendants' Motion for Summary Judgment as to Count I of the 5th Amended Complaint, dated September 30, 2002, was based on the complaint as it existed before the mutually agreed to amendment of Count 1. In other words, the summary judgment motion as to Count I was based on the same pleading that the Defendant now claims, and claimed in its motion for summary judgment, is a sham pleading. The summary judgment was denied. The “sham” allegation was reserved to this Order. See Order Denying Defendants? Motion for Summary Judgment on Wrongful Death Claim (Count 1), signed September 30, 2002.
Further, this court has denied the motion for summary judgment as to Count II of the complaint, the Intentional and Reckless Infliction of Emotional Distress count. There is evidence sufficient to go to the jury that Lisa McPherson was fed on by insects while she was alive and conscious, and there may be other allegations in that count of the complaint that the jury may also be permitted to consider. What the court will not permit to go to the jury—at least without further proof being adduced either before or during trial, is that there were cockroaches at the Church property where Lisa was being attended, that bit and fed on her. Even though the Plaintiff has an expert, with appropriate credentials, who would testify that the insect bites are “consistent with” cockroach feedings, this court has ruled that there are no underlying facts to support the Plaintiffs expert's testimony. This court has also ruled that even if there were facts, the probative value of that opinion is outweighed by the prejudicial value of it. See Order Granting in Part and Denying in Part Defendant's Motion to Exclude Expert Testimony (Insect Testimony/Cockroach Bites), signed June 3, 2002.
A summary judgment was granted as to Count III of the complaint, the False Imprisonment count. The Honorable Frank Quesada entered his Order on June 20, 2001, when he was in Division 11 where this case is assigned, prior to the time the undersigned took over Division 11. Judge Quesada's Order does not say Count III was a sham pleading. And while this court has entered an Order Denying Plaintiffs Motion to Rescind Order of Summary Judgment on Count III, False Imprisonment Claim, dated June 3, 2002, refusing to reconsider Judge Quesada’s order, it should be obvious to anyone reading this court's order that she would probably not have ruled the same as Judge Quesada, but would allow the jury to decide Count III, the False Imprisonment claim. She refused to reconsider Judge Quesada’s Order because she was unable to say that Judge Quesada was “clearly ~ the standard she believed would be necessary to reconsider Judge Quesada’s Order.
There is presently under consideration a Motion for Summary Judgment of Count IV, the Battery count. This court has reviewed the motion and the response thereto, and finds that the resolution of that motion will have no bearing on this Order. It is noted, however, the Church does not allege, in their Motion that Count IV is a “sham pleading.” And this court finds it is not. As previously noted, this court has previously denied the Church’s Motion for Summary Judgment of Count V. See this court's Amended Order Denying Defendant's Motion for Summary Judgment of Negligence Survival Claim (Count V), dated September 30, 2002.
The Church in its Omnibus Motion calls the Plaintiffs complaint a sham pleading” and yet, most of it has survived requested summary judgments. So how can it be a sham pleading? The real graveman of the Defendants’ “sham pleading” allegation is that the Plaintiff alleged in Count I, 34 of Plaintiffs Fifth Amended Complaint that the “Defendants.. .intentionally.. .decided to let Lisa McPherson die (i.e. ‘end cycle in Scientology terms), rather than save her life... .This decision made by Scientology, through the Sea Org by David Miscavige, and carried out by Kartuzinski, Johnson, and Houghton, was only due to their desire to protect Scientology from bad public relations.”
In the Order denying summary judgment on Count I, this court said there was evidence from which the jury could decide that the Defendants Kartuzinski and Johnson intentionally decided to let Lisa McPherson die, or that they intentionally neglected to obtain medical care for Lisa McPherson, a disabled adult. That analysis will not be repeated here, but I refer the parties to that order for this court's entire analysis.
In the order denying summary judgment on Count I, this court also held that the Plaintiff did not have to prove motive, which is what that part of 34 is that says that the decision “was only due to their desire to protect Scientology from bad public relations.” Order Denying Defendant's Motion for Summary Judgment on Wrongful Death Claim (Count I), pp. 3, 14. As to whether or not Count I is a sham pleading, however, this needs to be addressed briefly. In summary, while this court has often expressed her personal doubt as to this motive, there was sufficient testimony presented by the Plaintiff at the Omnibus Hearing that the Church's failure to seek necessary medical treatment for Lisa McPherson was due to their desire to protect the Church from bad publicity. If indeed this were their motive, it would seem that they failed. While not required to prove any motive, the Plaintiff can explore this at trial if they wish. This is not a sham allegation.
That leaves us with that part of 34 that talks about David Miscavige (“Miscavige”), the highest ecclesiastical leader of all of Scientology. Are there any facts—proof—that Mr. Miscavige decided to let Lisa McPherson die? The answer in a word is “NO.” There was evidence presented at the Omnibus Hearing, beyond Jesse Prince’s Affidavit and testimony, that Miscavige would or should have known that Lisa McPherson was at the Church, if she were undergoing an Introspection Rundown, and that he would or should have been kept informed. See, for example, testimony of William Franks:
Q. (by the Court): Two things: One is, is it your opinion, based on your knowledge of the Scientology—what shall I say? Organization—that this person, [Lisa McPherson] who was PTS III, in the introspection rundown, that this would have been reported to the top; to Mr. Miscavige?
A: Without a doubt.
Omnibus Hearing (“O.H.”), Franks, June 13, 2002, p. 150.
Q. (by Dandar): Based upon what you know about David Miscavige when you worked with him until 1981, and knowing that he’s now chairman of the board [of RTC], can you tell us, based upon your personal experience, if he would have been involved from day one in knowing about Lisa McPherson at the property of the Church of Scientology?
A. He would have been all over this like white on rice.
O.H., Franks, Id., pp. 190-191.
There was testimony from witnesses other than Franks, which also supports this.
There is also evidence that the Senior Case Supervisor, mt., Mr. Ray Mithoff, would or should have known, and been kept informed, and that the head of the Office of Special Affairs, Int., Mr. Mike Rinder, would or should have known, and been kept informed. If they were not advised and kept informed, the reason could be because Mr. Kartuzinski or Debbie Cook (the Commanding Officer at Flag during Lisa’s 18-day stay) did not do what they were supposed to do, or that Lisa McPherson was not undergoing an Introspection Rundown while at the Church, which is what the Plaintiff has now decided (and is an issue still to be resolved as to whether or not the pleadings are such that she can pursue this). But regardless of whether Mr. Miscavige knew that Lisa McPherson was at the Church, undergoing an Introspection Rundown (which he has said in a brief affidavit prepared for another hearing, but also filed as an Exhibit in the Omnibus Hearing, that he did not know), that is a far cry from his having “decided to let Lisa McPherson die” and instructing Mr. Kartuzinski and Ms. Johnson to carry out his decision.
How did this allegation get added to the Fifth Amended Complaint? It is necessary to go back to Plaintiffs Motion to File Amended Complaint to Allege Claims for Punitive Damages and Motion to Add Party Defendants, which the Plaintiff served on September 7, 1999. In that Motion, the Plaintiff sought to add as Defendants the “Church of Scientology International, Inc. (“CSI”), Religious Technology Center, Inc. (“RTC”), David Miscavige, Marty Rathbun and Ray Mithoff.” In the Complaint attached to the Motion, this is the first time the “end cycle” designation appeared, and the first time that the statement “decided to let Lisa McPherson die” appeared. In this motion, the allegation read, the decision was made by “RTC, CSI, Miscavige, Mithoff, and Rathbun” and carried out by the other individual Defendants. This Motion to add parties was denied in an Order by Judge Moody dated October 22, 1999, finding that “the Plaintiff has entered into a binding agreement that prevents the addition of the corporate parties Plaintiff seeks to add by this Motion.”
The basis of the new information of “end cycle,” and “decided to let Lisa McPherson die” was principally an affidavit signed by Jesse Prince (“Prince”) on August 20, 1999. I say principally, because there were other affidavits attached to the motion to add parties, although they were about the chain of command rather than the “decision to let Lisa McPherson die.” Stacy Brooks admitted at the Omnibus Hearing that she encouraged Mr. Prince in his opinions, and even helped him to get him in the “proper frame of mind” for writing his affidavit. She now says the information in Prince’s affidavit about Miscavige, Rathbun and Mithoff deciding to let McPherson die is false, but admitted at the hearing that the idea came from her.
Q. (By the Court): I’m sorry?
A. I said no, but the idea came from me.
Q. What idea? A. The idea that they would have let her die to avoid a PR flap.
0. H., Brooks, May 3, 2002, pp. 81-82.
While there were other affidavits giving support to the fact that Mr. Miscavige and others would have known about Lisa McPherson, and would have been in charge of decisions regarding her, no other affidavit but Mr. Prince's suggests that the decision they made and communicated “down line” to Mr. Kartuzinski, was to let Lisa McPherson die. There was no testimony at the hearing, except Mr. Prince~ s, which supported this either. Ms. Brooks admits she told Mr. Dandar, when she was his consultant that “this could have happened.” O.H., Brooks, Id., pp. 88-89. She said at the hearing, however, that she no longer believes this.
When the attempt to add parties failed because of an agreement not to add corporate parties, the Plaintiff filed another motion to add David Miscavige as head of the Sea Org. an entity within Scientology, but not one included in the agreement. This motion to amend was granted by Judge Moody, after opposition by the Church, and Miscavige. Thus, we have the Fifth Amended Complaint served December 21, 1999, which is the subject of the Omnibus Motion. Now there is no mention of RTC, CSI, Mithoff and Rathbun making this “decision”, but only Miscavige, as head of the Sea Org.
Soon after David Miscavige was added, a Motion to dismiss him for lack of proper service was granted, and from that point on, he was and is no longer a party to this lawsuit. Why the Church did not simply file a motion to strike the offending language at that point in time, or some later point in time, especially after Prince’s deposition, when it must have been obvious that Mr. Prince had no facts upon which to base his opinion, is unknown. Rather, they decide to attack the entire complaint, and particularly Count I of the complaint, saying because there is no proof that David Miscavige decided to let Lisa McPherson die, the entire complaint, or Count I of the complaint, is a sham and should be dismissed. I cannot agree that the entire complaint is a sham because one allegation cannot be proved. I do agree with the Church that neither Jesse Prince, nor any other witness for the Estate, has any admissible proof that David Miscavige made any decision to let Lisa McPherson die.
It is probable that the Plaintiff, Mr. Dandar, Jesse Prince, and perhaps others, disagree with me that there is no admissible proof that Miscavige decided to let Lisa McPherson die. The Plaintiff will say, just as they did with the “cockroach testimony”, that if you have an expert with an opinion, that is the proof. The problem with that is that there has to be some facts to support the opinion before the opinion can come into evidence. I find there are no facts to support Prince’s opinion, and thus, the opinion cannot come in before the jury, unless facts are developed prior to the trial. It is the Plaintiffs prerogative to disagree with this court's legal analysis that her expert's opinion is admissible, just as it is the prerogative of the Church to disagree with my legal determination that the inclusion of the offensive language does not require an otherwise viable complaint to be dismissed. That is why we have appellate courts. However, I find and conclude that this allegation, no matter how offensive to the Church, its parishioners, and Mr. Miscavige, which I have now found is without proof in the record, included within an 18-page complaint does not make the 5th Amended Complaint, or Count I, even before it was recently amended by agreement, a “sham,” a “mere pretense,” or one which “perpetrated a fraud on the court which permeates the entire proceedings.” Motion, p. 3. Accordingly, neither Count 1 nor the entire complaint will be dismissed.
While I have ruled that neither the complaint nor Count I is a sham, which should cause the entire complaint, or Count I to be dismissed, this is not to suggest that I condone the Estate’s amending their complaint, without proof, to state that David Miscavige, the ecclesiastical leader of the Church of Scientology, decided to let Lisa McPherson die and passed this information down line to subordinates who let it happen. Mr. Prince should have been grilled by Mr. Dandar to make sure his opinion was backed up with facts that could be proved before he ever suggested to his client that the complaint should be amended to include this allegation. If he had done that, perhaps he would have concluded, as I have, that there are no underlying facts to support Prince~ s opinion. Without facts, the opinion is inadmissible, as a matter of law. Furthermore, in light of this Order, Mr. Dandar should stop using or stating this allegation unless it is necessary to preserve some appellate review. The complaint has now been amended by the Plaintiff. It no longer includes any allegation that David Miscavige decided to let Lisa McPherson die. This court has now stated in this Order there are no facts to support this allegation. It's time for the Plaintiff and the Plaintiffs counsel to stop saying this.
At the time the complaint was amended, I find that Dandar not only had the opinion of his consultant/expert, Jesse Prince, that Mr. Miscavige and others may have decided to let Lisa die, but also the same opinion of his consultant, Stacy Brooks, and to some extent, his consultant Vaughn Young. Brooks changed her opinion at the Omnibus Hearing, and Young's testimony at the Omnibus Hearing provided no facts to prove this. Prince's testimony at the Omnibus Hearing is that he still believes he has a good faith basis for his opinion. I disagree with Mr. Prince, and have previously told all counsel that I would not allow Jesse Prince to give this opinion at the wrongful death trial, as I do not believe there are any admissible facts to support his opinion. Based on this court's previous discussions with all counsel, the wrongful death complaint has now been amended to omit this language. It could have been done a lot sooner if a motion to strike had been filed by the Church. But, nonetheless, Dandar relied on his experts/consultants, as he had a right to do, in amending the complaint. No disqualification of Dandar can come from this.
The Church has filed a counterclaim for abuse of process, and at the time of that trial, which has been severed from the wrongful death trial, this entire issue can be explored by both sides, at which time testimony will be allowed by Mr. Prince, Mr. Dandar, and others to decide the Estate’s motive as to why the complaint was amended to include this allegation. At that time, a jury, not this court, will decide whether there was an abuse of process, part of which will include this issue, in the trial of the counterclaim.
In summary, the cause and manner of the death of Lisa McPherson is legitimately an issue that needs to be decided by a jury. There is legitimate, admissible evidence that will be submitted to that jury which could cause the jury to find for the Plaintiff, and they could award both compensatory, and punitive damages to the Estate. There is legitimate, admissible evidence that will be submitted to the jury, which could cause the jury to find for the Defendants, and award no damages to the Estate. If this were a sham pleading, there would be no case to present to the jury, and as previously stated, this court has previously denied a summary judgment as to Count I of the complaint, before it was amended. The complaint is not a sham. Count I of the complaint is not a sham. The inclusion of the offending language in Count I may or may not constitute an abuse of process. If so, a jury will award damages to the Church at the trial of the counterclaim. If not, the jury will find for the Estate on this aspect of the counterclaim.
PERJURY/SUBORNATION OF PERJURY
There are five allegations made in the Omnibus Motion by the Defendants that I will address in this Order. (1) Did Mr. Minton or Mr. Dandar lie about whether the money Dandar received from Minton was a donation/loan to the Estate, to be used only for costs associated with this lawsuit, or whether it was a personal loan/donation to Dandar to be used for any purpose he chose, including, but not limited to costs associated with this lawsuit? A related allegation which the Church tried to raise in the Omnibus Hearing, and which was raised in the hearing before Judge Baird, is if it was a donation/loan to the Estate, did Mr. Dandar co-mingle the money with his own, rather than by putting it in his trust account? (2) Did Mr. Minton lie in a deposition about how much money he provided to Mr. Dandar, and if he did, did he do so because Mr. Dandar told him to lie? (3) Was there an “agreement” between the Estate and Mr. Minton that the Estate would give the “bulk” of any proceeds it may recover to an anti-cult organization controlled by Mr. Minton, and when the Church made this an issue, did Mr. Minton, Ms. Liebreich, and Mr. Dandar lie about it in depositions and affidavits? If Mr. Minton did lie, was it because Mr. Dandar told him to lie? (4) Did Mr. Minton control/interfere with the wrongful death case through his investment”? If so, did Mr. Dandar tell Mr. Minton to lie about it? This allegation includes the “secret meeting” about adding Mr. Miscavige as a Defendant to the wrongful death case that Mr. Minton says he lied about at Mr. Dandar’s request. (5) Did Mr. Dandar have anything to do with the many discovery violations of Mr. Minton, Ms. Brooks and LMT, including the destruction/removal of various records, computer hard drives, videotapes, etc. that were ordered to be produced for the Church’s use in this case?
THE LOANS/DONATIONS TO THE ESTATE/DANDAR
As to the first issue—the Minton money, and whether it was a loan, or a donation to the Estate, or to Dandar personally, this court would not allow this issue to be completely explored at the Omnibus Hearing for several reasons. The first and foremost one is that the Second District Court of Appeal has ruled on three occasions that the Church is not entitled to pursue the amount of money Dandar/the Estate has received or has remaining from Minton or any one else as it is irrelevant to the wrongful death case, and the breach of contract/tortious interference action. Liebreich v. Church of Scientology Flag Service Organization, mc, 813 So 2d 1032 (Fla. 2d DCA 2002); Liebreich v. Church of Scientology Flag Service Organization Inc., 815 So 2d 678 (Fla. 2d DCA 2002); Liebreich v. Church of Scientology Flag Service Organization, Inc., 816 So. 2d 776 (Fla. 2d DCA 2002). The district court cautioned that continuous inquiry by the Church into the amount of money Dandar/the Estate had left to take this case to trial would lead them to conclude that the Church was simply trying to find out how “long the Estate can last before it has to throw in the towel due to lack of funds.” Liebreich, @ 1034; Liebreich, @ 679. The Second District said it would cause irreparable harm to the Estate to permit this type of discovery to go forward.
If the monies received by either the Estate or Dandar from Minton are irrelevant to the wrongful death case, as determined by the Second District, there can be no perjury or subornation of perjury regarding Dandar or Minton's testimony about their ownership or purpose. That is so because perjury involves something “material” to a case. While Judge Baird allowed this issue to be pursued in his hearing to disqualify Dandar, as the opinion from the Second District regarding this issue in his case had not been issued at the time of his hearing, this court felt it would have been impossible to allow the Church to pursue this at the Omnibus Hearing without allowing them to trace the money in and out of Dandar’s trust and personal accounts. If I had permitted that inquiry, the Church would have found out how much money was left to pursue the wrongful death trial. This is what the Second District said the Church should not be permitted to do, as it would cause the Estate irreparable injury.
Therefore, while the inquiry as to whether this money belongs to the Estate or to Dandar may be relevant to the breach of contract case, where the Plaintiff is RTC, who has a judgment against the Estate, and Dandar, or to the probate case, where the judge will have to determine if the Estate has money to pay its creditors, this court agrees with the Second District---the Minton money has absolutely no relevance to the wrongful death trial. The only person who can get a judgment in the wrongful death case is the Estate—the Plaintiff The Defendant may be able to get a judgment against the Estate in its counterclaim for abuse of process, but this court has stayed the counterclaim indefinitely until the wrongful death case is completed. Mr. Dandar is not a party to the counterclaim.
Thus, while it may be of interest to the Florida Bar, to Mr. Minton, to RTC, or even to the personal representative of the Estate, as to how Mr. Dandar handled and/or spent Minton's money it should not be of interest to the Defendants in the wrongful death case. This court has cautioned the Church not to violate the opinions of the Second District, and a full hearing on this issue at the Omnibus Hearing would have caused both this court and the Church to violate those opinions.
For all of the above reasons, I did not permit the Defendants to pursue this issue fully at the Omnibus Hearing. See, for example, O.H., Dandar, June 4, 2002, pp. 345-346. Because I did not permit it to be fully pursued, I make no findings regarding this issue, except to reiterate what the Second District has said on more than one occasion -- that the issue is irrelevant to the wrongful death case, and the Church should stop any effort to pursue the amount of money the Estate/Dandar has to take the wrongful death case to trial.
THE $500,000 UBS CHECK
As to the second issue, the $500,000 check, the same rationale as discussed above is probably appropriate. Where the $500,000 came from, whether it was from Mr. Minton or someone else, it is absolutely irrelevant to any issue in the wrongful death case. The further issue as to whether Mr. Dandar knew it came from Mr. Minton, and told him to lie about it and not tell the Church about this particular $500,000 check, is similarly irrelevant, and thus immaterial to any issues in the wrongful death case. The jury in the wrongful death trial will not be told who financed the Plaintiffs case, or how much that financing was. Since this $500,000 check is not material to any issue to be tried in the wrongful death case, Mr. Minton could not be charged with perjury for his deposition testimony, and Mr. Dandar could not be charged with suborning perjury regarding Minton's deposition testimony about this check. Of course, lying or suborning lying would be a Code of Professional Responsibility (the “Code”) violation whether it is perjury or not. But, it is doubtful these Defendants have any standing to pursue disqualification regarding this alleged Code violation, or standing to pursue the appearance of impropriety to have Dandar removed regarding this alleged violation. This will be more thoroughly discussed later under Issue III of this order.
Since the “cat was out of the bag” since Mr. Minton had provided the Church all information regarding his funding of this case, including copies of all checks he provided, including the May 1, 2000 $500,000 check in question, and since it was pursued in the Omnibus hearing with Dandar’s agreement, this court will discuss it. Note that this court will not discuss the March 7, 2002, $250,000 check much in this order. The reason for this is because there is no allegation that Mr. Minton or anyone else gave false testimony about this check prior to these hearings in front of Judge Baird and me. Everyone admitted at the Omnibus hearing that this check was only relevant to the credibility of Minton and Dandar as to the $500,000 check given in May, 2000.
Some things are not in dispute about the $500,000 check. Mr. Minton gave it to Mr. Dandar soon after May 1, 2000, the date on the check, at the Bombay Bicycle Club in Clearwater, Florida. This check was not written on any account of Mr. Minton's and his name appeared nowhere on the check to identify it as coming from him. It could not have been traced to him, as the Union Bank of Switzerland, apparently as is the custom of many Swiss banks, would not have identified the bank, which was the source of the money. This court would have no jurisdiction over the Union Bank of Switzerland, or any other Swiss bank, and could not have compelled them to tell us the source of the money. The check was a bank check from the Union Bank of Switzerland, (“UBS” check), and was drawn on UBS’ account at the Chase Manhattan Bank in New York. The check was payable to Ken Dandar. Here, the matters that are not in dispute end.
According to Minton, he does not have an account at the Union Bank of Switzerland, but has an account in another offshore bank, presumably in Switzerland, which he refuses to identify. This unknown bank (Minton claimed the Fifth Amendment every time he was asked to identify the bank) transferred Minton's funds to the Union Bank of Switzerland, who then transferred the funds to its bank in New York, Chase Manhattan Bank, who then issued the bank check payable to Ken Dandar.
Dandar says in the Estate’s closing argument that since Minton refuses to identify the bank, there is no proof that the money is actually from Minton, and that further, since he claimed the Fifth Amendment, his entire testimony should be stricken. Dandar may be right about striking all of Minton’s testimony, but since it doesn't prejudice the Estate, as I am ruling for the Estate in this Order, I will continue and not strike Minton's testimony. Perhaps my analysis will be of assistance to the Florida Bar or the State Attorney. If this Order is appealed, a reviewing court, should they feel this court erred in her findings regarding this issue, should consider whether Minton's entire testimony should be stricken.
The real dispute is that Minton says he told Dandar at the Bombay Bicycle Club that the money was from him, whereas Dandar says Minton told him the money came from anonymous “friends in Europe”. Mr. Dandar says that he knew Minton had friends in Europe who were interested in the case, and he assumed they wished to remain anonymous because they were afraid of the Church and what they would do to him/her/them if the Church found out that they were assisting the Estate. O.H., Dandar, May 30, 2002, pp.311,323.
At his deposition on May 24, 2000, Minton was asked how much money he had given Dandar to date, and he testified that he had given Dandar $1,050,000 to date. If he in fact is the payor of the $500,000 to Dandar, he had actually given $1,550,000 to Dandar. Dandar also testified in his deposition on January 25, 2001 taken in the breach case that Minton had given him $1,050,000. Minton now says he lied in his deposition and Dandar lied also. Dandar says he did not. The reason Minton says he lied is that Mr. Dandar told him to lie regarding both his testimony at the deposition, and further told him not to produce this check pursuant to a subpoena duces tecum. Minton says Dandar told him to “concentrate on the checks you have written, you know personal checks. You know, your name is not on this check, you know, don't even mention it.” O.H., Minton, May 22, 2002, p. 708. When this court asked Mr. Minton soon thereafter if I understood him correctly about why he lied under oath at his deposition, he said,
Q. And your testimony to this Court, I guess, if I understand you, is that the only reason why you did this is---the only reason why you lied here again under oath is because Mr. Dandar asked you to?
A. That is correct, your Honor.
O.H., Minton, Id., p.709.
If Dandar is telling the truth that Minton told him the money was from “friends in Europe”, then Dandar wouldn't have known that Minton lied at his deposition, since he wouldn’t have known the money came from Minton. If Minton told Dandar it was from anonymous friends in Europe, Minton's deposition testimony that he had given him $1,050,000 simply confirmed what Minton had told him---Minton's personal checks totaling $1,050,000 came from him, and the UBS check of $500,000 did not, but rather came from sources in Europe who didn't want to be known. As to Dandar's deposition, he would have been merely stating the amount of money that he believed Minton had paid him to date. While Dandar may have been na´ve, that doesn't make him a liar.
Why does Minton say he gave Dandar an unidentifiable UBS check instead of a personal check, which would clearly show it was from Minton's personal account? Mr. Dandar again. “Well, Mr. Dandar said he wanted to be able to hide the amount of money he had from Scientology to take this case to trial. And that was one of the reasons. The second reason was that he wanted to cut back on. the payments that he was making to some of his employees. And he mentioned Dr. Garko and Thom (sic) Haverty by name.” O.H., Minton, May 22, p. 668. A third reason Minton finally propounded at the very end of his testimony was that Dandar didn't want the funds to be traced back to Minton. He says “[A]nd that the funds couldn't be traced back to me.. .for the purpose of, you know, appearing to be—me less involved, distant—more distant from the case.” O.H., Minton, May 30, 2002, p. 1866.
It is true that Dandar stopped paying Dr. Garko, (it is unknown about Haverty, since he was never called as a witness in front of Judge Baird or in front of me) indicating he didn’t have the money to do so, but he didn’t stop his payments to Garko until September 2001. O.H., Garko, August 29, 2002, pp. 100-101. This is some 16 months after the May, 2000 payment. Further, when Garko and Dandar went to New Hampshire in February, 2002 to try to get more money for the litigation, Minton told both Dandar and Garko that he had no more money for the case but perhaps he knew some “people/friends in Europe” who could help out. O.H., Garko, August 29, 2002, p. 80; O.H., Dandar, June 4, 2002, p. 305. Note that Dandar says that in addition to saying “friends in Europe”, he said, “we’ll call him Fat Man”.
This is where the “Fat Man” designation for the $250,000 keeps being used, but it was proceeded by “friends in Europe”, according to Dandar. Dr. Garko remembers he said “people in Europe” (p. 80), and when asked about the “Fat Man”, said he remembers some “statements about alternative sources and some European source for money.”
Q. O.K. And do you remember me asking Bob, “Well who would that be?”
A. I do recall that.
Q. And do you remember Bob Minton saying, “Well, let's call him the ‘Fat Man'?” A. Or some such name.
O.H., Garko, June 11, 2002, pp. 112-113.
Minton agrees that he used the term “friends in Europe”, in New Hampshire, but says that the reason he talked like the money wasn’t coming from him at that meeting was once again because Dandar asked him to—not wanting Garko to know he would be the source of the money. That explanation makes no sense, since as far as Garko was concerned, money was money, and would have been available to pay him—whether it came from Minton or “people in Europe.” And, of course, if Dandar really didn’t want Garko to know about any money he was receiving, regardless of the source, Dandar wouldn’t have asked Minton if he could bring Garko with him, but would have left him in Tampa, and there would have been no reason for the supposed “charade” in which Minton says he engaged in New Hampshire, because Dandar wanted him to.
Who is telling the truth here? The easy way out is to say you can’t tell, and the Church, therefore, fails in their burden of proof. However, Minton has accused Dandar, a member of the Florida Bar, of perjury and suborning perjury. It would seem to be my duty, both as a trial judge in this case and as a proud member of the Florida Bar, to decide who's telling the truth and who is not, if I can.
Why would Dandar have wanted Minton to lie about the $500,000 UBS check at his May 2000 deposition? Do Minton's reasons Dandar supposedly gave make any sense? The third reason given was so Scientology couldn’t trace the funds back to Minton, so it would appear he was “less involved.” Minton testified in his May, 2000 deposition that he had given $1,050,000 to Dandar for the case. Quite frankly, the difference in Minton's telling the Church that he gave Dandar $1,050,000 and $1,550,000 is fairly unimportant—either is a huge sum of money, and would certainly raise the eyebrows of the Church, which it did from the deposition on. Both Dandar and Minton would have known this. This reason makes no sense.
What about Dandar committing perjury and suborning perjury to avoid his employees knowing about the money? Please!! Supposedly, Dandar indicated he needed this money to take the case through trial, which at that time was set for June, 2000. He could have explained this to his employees. Further, he paid Dr. Garko in full through September 2001, 16 months after May 2000. In fact, Dr. Garko more or less confirms what Dandar says which is that he doesn’t generally discuss money matters with his employees. When asked about the Minton checks Dandar had discussed with him, Garko says he didn’t tell him about any money he received from Minton in 1998, he has no recollection of Dandar telling him anything about Minton money in 1999, he says Dandar did tell him about getting money from Minton in 2000 before the May, 2000 check which he did not tell him about, but he really doesn’t remember how many checks he told him about in 2000. As to 2001, he says Dandar “may have” told him about checks he got from Minton in 2001, but doesn’t really remember, and he was not told about the $250,000 check in 2002, which came in March, and which he learned about on April 9, 2002 when co-counsel for the Estate, and counsel for Dandar, Luke Lirot, told him and Dandar about the substance of Minton's April 9 testimony. Dandar and Garko were not at this hearing as they were in a trial in Tampa on April 9, the date of the first hearing where anything was mentioned about the $500,000 and $250,000 checks. O.H., Garko, August 29, 2002, pp. 99, 115-117. Certainly no attorney is under any obligation to tell his employees, including trial consultants, about what money he/she is receiving from any source. And whether or not Dandar had money to pay Garko after September, 2001 and did not do so is not our business. That is between Garko and Dandar. But certainly no attorney would tell someone to lie under oath because he didn’t want to have to pay an employee 16 months after he allegedly suborned perjury. Surely a license to practice one’s chosen profession, to say nothing of going to jail, is worth more than committing perjury and suborning perjury to stiff an employee.
And what about the first reason Minton gives that was Dandar’s reason for asking him to lie, that he didn’t want Scientology to know he had the money? When the court was permitting continued discovery regarding his/the Estate’s money, and Dandar thought the court was wrong, he knew what to do, he took certiorari to the Second District Court of Appeal who said Dandar was right, and the Church didn’t get to know any more about Minton’s money. He probably could have stopped them from asking any questions about it if he had wanted to. He didn't need to suborn perjury to keep Scientology from knowing about his/Estate's money. That would be a ridiculous reason to suborn perjury. I have no doubt that Dandar didn’t want the Church to know how much money he had to conclude the case. But to commit perjury, suborn perjury, lose one’s license to practice law, to say nothing of going to jail, to keep the Church from knowing how much money he had to pursue a case to trial is ludicrous. Dandar handled this like a lawyer. He got the Second District to tell the Church they were out of line in pursuing the Estate’s/Dandar’s funds for this case.
Why would Mr. Minton want to tell Ken Dandar the $500,000 UBS check came from “friends in Europe”, the “Fat Man”, or anyone other than himself, and lie about it when asked in deposition about monies he had given to Dandar? The long answer as it developed in the Omnibus Hearing is obvious: “For the love of money is the root of all evil....” The Bible, Timothy 6:10. The short answer is “Income Tax”. Robert Minton, without doubt, will lie and cheat when it comes to his money. What is clear to anyone who attended the Omnibus Hearing is that Minton has cheated the United States government in the amount of income taxes he has paid them. He claimed the Fifth Amendment over and over when it came to identifying from where—what bank—this $500,000, and all other foreign money he had brought into this country during the relevant time period, came. He would not supply his tax returns, claiming the Fifth Amendment. When asked whether he had checked “yes” in the box on Schedule B of his income tax returns which asks, “At any time during (the taxable year), did you have an interest in or a signature or other authority over a financial account in a foreign country, such as a bank account, securities account, or other financial account?” he claimed the Fifth Amendment. When asked since he had foreign income, and a foreign bank account(s), if he supplied the required form TD F 90-22.1 to the U.S. Department of Treasury to show foreign bank accounts, amounts, and much more, which form is mandatory, he claimed the Fifth Amendment. This form says the “principal purpose for collecting this information is to assure maintenance of reports where such reports or records have a high degree of usefulness in criminal, tax or regulatory investigations or proceedings.” It also says, “Disclosure of this information is mandatory. Civil and criminal penalties, including in certain circumstances a fine of not more than $500,000, and imprisonment of not more than five years, are provided for failure to file a report, supply information, and for filing a false or fraudulent report.” When asked if he reported this $500,000, and other monies to be discussed, which he brought into this country from foreign countries, on his income tax return at any time, he claimed the Fifth Amendment. He claimed the Fifth Amendment as to these same matters in at least two depositions, one on September 18, 2001, and one on October 11 and 12, 2001.
It doesn’t take a genius to figure out what’s going on here. Mr. Minton was required to pay taxes on the millions (perhaps as much as a billion) of dollars either when he made the money, or if he was able to legally defer those taxes, when he brings the money into the United States. Income tax evasion brings huge monetary penalties, to say nothing of incarceration. Mr. Minton had some real reasons not to want to disclose a foreign bank account to the Church, who he believed would stop at very little to stop his financing of the Lisa McPherson case. The $500,000 UBS check was the first foreign check he had used to give to Mr. Dandar. The Church was asking questions, and the court was requiring him to give them answers. Mr. Dandar was not Minton's attorney. He could not disclose to Dandar that this foreign money came from him or he would have had to tell the Church about it. It was much better for him to tell Dandar the money came from “friends in Europe” and thus never disclose this money as coming from him to the Church. This is a real reason for Minton to lie about this $500,000 foreign check!
Let’s talk about foreign money that we know came into LMT from Bob Minton. First, a $300,000 check from “Operation Clambake” and second, a $500,000 wire transfer from Switzerland. Both the check and wire transfer were from offshore banks. The money for the $300,000 was another UBS check, and the $500,000 was a wire transfer from Dresdner Bank New York by order of Dresdner Bank Switzerland. Dresdner Bank was not the source of the funds either. In any event, both the check and wire transfer were matters about which Mr. Minton lied in depositions, including one taken on April 8, after he was supposed to “set the record straight.” He didn’t correct any testimony to reflect that he was the source of this money in front of Judge Baird, or on his first or second recantation affidavits filed before me or Judge Baird, until he was caught in the Omnibus Hearing in his lie. See O.H., Minton, May 21, 2002, pp. 444-446. In fact, he lied in front of Judge Baird when he said his testimony in his April 8, 2002 deposition had been the truth. Minton never tried to pretend that Dandar had anything to do with these lies of his under oath. The reason he lied, however, is the same: Income Tax.
Stacy Brooks was deposed for the second time by Mr. Moxin, who was representing the Church, on August 15, 2001. In that deposition she disclosed two things that, according to some, made Mr. Minton upset. She told Mr. Moxin that LMT had received a check from “Operation Clambake” for $300,000 in April, 2001. Operation Clambake is an anti-Scientology web site, run by Andreas Heldal-Lund from Norway. Regarding this check, Ms. Brooks got an anonymous call from a man she didn’t know who told her this check was coming. She didn’t know who had called (although she knew Mr. Lund, so she knew it wasn’t him). Mr. Minton allowed her to believe this money had come from Operation Clambake, although he knew that he was the source of this money, and that it had been set up to come through Operation Clambake through an elaborate ruse set up by John Merrett, at the request of Mr. Minton. She also told Mr. Moxin about a $500,000 wire transfer. The $500,000 wire transfer, according to Ms. Brooks at her deposition, had shown up in the LMT account one day, and had come from anonymous people in Europe. In fact, according to Ms. Brooks, “Mr. Minton spoke to some people in Europe and arranged for some contributions.” Brooks deposition, August 15, 2001, p. 30, and the reason he had arranged for these European people to make an anonymous contribution was, because they were “very afraid of Scientology finding out who they are. They are familiar with Scientology's harassment policies and they didn’t want to be known.” Brooks, Id., p. 30-3 1. When asked in the deposition about discussing these monies with Mr. Minton, Ms. Brooks says about the $300,000, “
Q. Did you ask Mr. Minton where this money came from?
Q. Did you ask Mr. Minton why---
A. Mr. Minton didn’t know anything about this. This didn’t have anything to do with him.”
Q. The Operation Clambake check?
Brooks deposition, Id., pp. 39-40.
When asked about the $500,000, she had this to say,
Q. Did you ask Mr. Minton who had made these investments in the trust?
Q. What did he tell you?
A. He said that they had asked to remain anonymous and he had given them his word.
Brooks, Id., p. 42.
It is of nominal interest that $650,000 of this money we now know came from Mr. Minton was given to Minton by Ms. Brooks to repay a “loan” he had made to LMT—no documents, of course, which is par for this case.
Ms. Brooks was placed in charge of LMT by Minton and was Minton’s mistress, and yet he lied to her about money he was bringing into this country from Europe. Why would he lie to her? Why did he continuously lie about these monies in his own depositions? He doesn’t even suggest that Dandar told him to tell these lies. He tells us various things:
1. “Well, the whole issue of getting money from other sources besides me into the LMT was to try to get Scientology off on a wild goose chase, basically thinking that it's either the German Government or the French government who were supporting us.
O.H., Minton, May 21, 2002, p.445.
2. “[T]o keep Stacy Brooks out of the picture in terms of where any monies were coming from other than what came in from me....”
O.H., Minton, May 24, 2002, p. 1052.
This makes absolutely no sense. She was the supposed head-of the LMT, and this check was from him, so he says.
3. “Because we wanted to make sure that when she went into depositions and had to answer any questions about this that she really didn’t know what the answers were other than what she was told.”
O.H., Minton, Id., p. 1060. 4.
Q. (by the Court) You lied to the woman that is your lover—
Q. — Your close—the person that you’re leaving your wife to be with.
A. You know, we did this to protect her.
O.H., Minton, Id., p. 1062.
He says he finally told Ms. Brooks that the $300,000 and the $500,000 was his money in late 2001 up in New Hampshire. O.H., Minton, Id., p. 1069. Of course, Ms. Brooks didn’t correct her erroneous deposition testimony in her recanting affidavit either, only at the Omnibus Hearing. Perhaps she and Minton thought since this didn’t involve Ken Dandar, no one would ever ask, and Mr. Minton could continue to keep this $800,000 of foreign money secret. Ms. Monique Yingling, the Church’s lawyer who specializes in tax and other matters, and who represented the Church in the MintonlBrooks' negotiations, said, when discussing why Mr. Minton told Ms. Yingling he didn’t tell Stacy Brooks the truth that he was the source of these funds, “[B]ecause they knew that she would be asked about the source of the funds in the ongoing discovery into the Lisa McPherson Trust, and so in order to protect her and not put her in a position where she would have to lie or tell a story that—that they didn’t want to become public, they--they did not tell her that.” O.H., Yingling, June 12, 2002, p. 110. This explanation makes sense. Minton didn’t want the fact that the foreign money was from him known. He was willing to lie about it. And if Stacy knew, he would have expected her to lie also. This is an interesting revelation. It shows Minton has no regard for the truth and he assumes Brooks wouldn’t either if he told her to lie.
What did Mr. Minton tell his lawyer, Mr. John Merrett, who presumably has an attorney client privilege not to have to reveal what Mr. Minton, his client, tells him? Merrett was the attorney who represented Minton at the May, 2000 deposition, and represented him at other depositions as well where the Fifth Amendment was claimed. Minton says Mr. Merrett knew all along that the $300,000 and $500,000 was from Mr. Minton, and agreed with him that they should lie to Stacy about this. O.H., Minton, May 24, 2000, pp. 1062-1066. He says Merrett lied in front of me when he said he did not know this because he, too, like Mr. Dandar, knew Minton was lying at his deposition, and that Stacy was telling things that were not true at her deposition. O.H., Minton, Id., p. 1066. Is Mr. Merrett another lawyer willing to lie, suborn perjury, and give up his license to practice law for Mr. Minton?
John Merrett testified at the Omnibus Hearing. He has been a lawyer in good standing since 1988. He testified unequivocally that he never knew that Minton was the source of the $300,000 or the $500,000 given to LMT, and that Mr. Minton never told him anything about giving Dandar an extra $500,000, but told him before his deposition in May, 2000, that he had given Mr. Dandar $1,050,000 to date, which is exactly what Mr. Minton testified to at his deposition. He says he has a policy that if a deponent says something that is not true, he discusses it with him/her at the first available time and gets them to correct the record. He says he did not have to do this with Bob Minton at any deposition. (He says, however, he did have to do this with Stacy Brooks at a deposition of hers. Merrett, May 23, 2002, pp. 70, 72, 102). He says he did not have to do this at Minton’s deposition testimony because according to what Mr. Minton had told him, Minton was telling the truth at his depositions. We now know Minton was lying at his depositions, but apparently this was unknown to his own lawyer.
Merrett says he arranged with an anonymous source, who he called, and who they arranged to identify as the “Fat Man”, to arrange for Mr. Lund to transfer money that he would receive via a transfer from friends of Mr. Minton in Europe who wanted to contribute to LMT, but that for “obvious reasons” did not want Scientology to know who they were. This same person—Fat Man—called Stacy Brooks to tell her the money was coming. The plan went as expected and the money was delivered except it was late, because Mr. Lund was suspicious (of Scientology) and checked the money out with the police before he transferred it to LMT. He believes that everyone, including Stacy Brooks, knew the money was not from Operation Clambake, but was from supporters of the LMT in Europe. (Perhaps this is what he told Ms. Brooks she was not telling the truth about in her deposition—Mr. Merrett could not remember what it was he had to “upbraid” her about, only that he had to do so at one deposition.) Merrett said he definitely did not know the source of the money was Mr. Minton's. In fact, it was Mr. Minton who specifically told him that there were “people in Europe who wished to contribute money but who wished to he insulated from LMT in order to protect them from reprisals from Scientology.” He was not surprised that anyone wanting to make a contribution to LMT would want to do it anonymously, “whether it was $5 bucks or $500,000.” O.H., Merrett, May 23, 2002, pp. 48-64, 127, 15 1-157. (While it may not be apparent to one unfamiliar with Operation Clambake and Mr. Lund, the reason Mr. Lund would have been willing to do this in Operation Clambake’s name is because he is a known Scientology critic. Operation Clambake is an Internet site devoted to anti-Scientology information. Sending money to the LMT would bring no additional reprisals from Scientology as far as he would be concerned.)
Additionally, Mr. Merrett testified that when Mr. Minton testified that he had given Mr. Dandar $1,050,000 at his May deposition, that this was the same amount that Minton had told Merreft he had given Dandar prior to the deposition when they prepared for it. Minton never told Merrett about any $500,000 UBS check to Dandar in addition to the $1,050,000. O.H., Merrett, Id., pp. 66-67.
Minton says that he told Jesse Prince and Stacy Brooks about giving $500,000 to Ken Dandar the day he received it. He did this on the roof of a parking garage across the street because he suspected Scientology had bugged the LMT offices. O.H., Minton, May 24, 2000, p. 1069. Prince says they did talk on the garage roof, but that Minton told him he had gotten the money from “people in Europe.” O.H., Prince, July 8, 2002, 367-368. He says when he visited Minton at the Adams Mark Hotel after the Minton/Brooks change of heart that he reminded Minton and Brooks of that conversation and “they just looked at me like, “Oh, yeah, we forgot about that part.” O.H., Prince, July 8, 2002, pp. 446-447. Stacy Brooks says nothing about any meeting on a garage roof in her testimony, at least none that I was able to find.
Dr. Garko remembers a conversation in New Hampshire when the discussion of money came up at dinner, and Mr. Minton was adamant that he had no more money to fund the case. He says, “Mr. Dandar—despite Mr. Minton'’ assertion that he’s no longer going to fund the case, Mr. Dandar still wanted to know if there were other ways to fund the case. And they were talking about that. No specific names were mentioned, no particular individual that I could say, Mr. Jones or Mr. Smith or something like that. It was generally perhaps people from Europe might be able to fund the case... .O.H., Garko, June 11, 2002, pp. 35-36. Minton remembers this same conversation and verifies that he said “I don't think there is anything I can do for you right now but, you know, maybe I have some friends in Europe who could be of assistance.” O.H., Minton, May 24, 2002, p. 1106. Of course, Minton says “the purpose of using that charade, as I called it, was to keep Dr. Garko in the dark about me providing the money.” O.H., Minton, Id., p. 1106-1107. As stated previously, this makes no sense. -If Dandar didn’t want Garko to know about any money he might be receiving, he wouldn’t want him to know about money from either Minton or “people in Europe.” Money is money, and spends the same, no matter the source.
Were there other UBS checks? How were they handled? Yes there were. There was at least one UBS check given to Gerry Armstrong to repay a loan to Mr. Minton. Minton was the source of that money, although he lied about it in deposition, even at his April 8, 2002 deposition when he was to “set the record straight” and didn’t recant until he was caught in that lie at the Omnibus Hearing. O.H., Minton, May 24, 2002, pp. 1119-1124. Of course, there were also lies at the April 8, 2002 deposition about the $500,000 and the $300,000 paid to LMT. O.H., Minton, Id., p. 1121. These lies were not cleared up in any subsequent deposition, or in any recanting affidavit until Minton got caught at the Omnibus Hearing. He really has no explanation as to why he continued to lie. But he says that although he admits he had an intense desire to hide the UBS checks of $500,000, $300,000, and the UBS checks to Jerry Armstrong from the Church, he did not have any such desire to hide the money he paid to Dandar from the Church, and only lied about that because Dandar told him to. O.H., Minton, Id., pp. 1129-1130. The absurdity of that lie was made clear by the next question he was asked by Mr. Dandar: Q. Mr. Minton, since—for the years 97, 98, 99, 2000 to 2002, have you underreported your income to the Internal Revenue Service? A. I’m going to plead the Fifth Amendment on that question. O.H., Minton, Id., pp. 1131-1132.
There were other UBS checks in the total amount of $2,000,000 given to Courage Productions, in which Mr. Minton was a one-half owner with Mr. Peter Alexander, to partially finance the movie “The Profit.” O.H., Minton, May 22, 2002, p. 714-715. The Church in their closing argument suggests that Peter Alexander had to know that the money was from Mr. Minton, and that Dandar failed to ask him about it when he testified. This proves, they suggest, Minton didn't care about others knowing about UBS checks. That, of course shows nothing about what Dandar believed or was told about his check. The reasoning is faulty since Minton didn’t tell Brooks and Merrett about the foreign checks. What is relevant to this case is that after Minton decided to recant, when asked from what institution the money for all the check came, including the Courage Production checks, he pled the Fifth Amendment. O.H., Minton, May 24, 2002, p. 1154. What we don’t know, of course, is whether or not Mr. Minton paid taxes on any of this money when he transferred it from Europe to this country. Minton was and still is trying to hide the source of the UBS checks. He still has not provided the source of any of those funds to this very day. Instead, he relies on his Fifth Amendment privilege. Minton would never have dreamed that Scientology would have obtained checks to Courage Productions—a movie company—as part of any Lisa McPherson discovery, a wrongful death case, so he had no reason to fear exposure of this check, unless the IRS audited Courage Productions, and found the UBS check. And it's obvious from reading Peter Alexander’s testimony that he didn’t pay any attention to the kind of checks he got. They were sent pursuant to a written agreement, and when he got a check, he paid no attention to the payor, but simply took it to the bank. O.H., Alexander, June 7, 2002, pp. 226-235.
Alexander and Minton were partners in a profit-making venture. They were friends. He had no reason to fear his partner would turn him in to the IRS. In fact, Peter Alexander testified at the Omnibus Hearing that Minton even told him he had tax problems on his foreign money. Q. All right. And what was your conversation with Mr. Minton at the Hyatt. A. We had just come from looking at the sound stage where we were building the set. He didn’t seem to be very interested in it. He seemed to be agitated and upset and unhappy. So he ordered a drink. And I said, “What's up?” He said: “These Scientologists are driving me crazy. They’re following me everywhere. They’re harassing my daughters.” He said, “And I’m very, very upset.” And he said, “They’re all over me for this Nigerian thing.” He made some business deal in Nigeria. And I said, “Well, so? What's up with that?” You know, “they’re not going to get anything on you.” And then Patricia was there for some of that conversation. She left. And when she left and he was talking about that Nigeria money, he broke down into tears and he said that he had tax problems with respect to that money and that that was what was worrying him. And so —. Q. Did he say what kind of tax problems he had with that Nigerian money? A. Yes, said he hadn’t paid taxes on that money. Q. And he was in tears? A. Yes. O.H., Alexander, June 7, 2002, pp. 184-190. It should be noted that the “Nigerian money” is the source of Minton’s foreign money.
Minton didn’t fear Alexander knowing this. He did greatly fear the Church coming into this information. And there was a chance as a financier of the case, discovery into Minton's checks might be permitted, as it was. That is why he couldn't tell Dandar. If he had told him, or Merrett, he would have had to testify truthfully about it if asked by the Church. If they didn’t know, he could lie and the Church, he hoped, would never find out about it.
Why didn’t Minton recant his previous lies about the $300,000 and $500,000 he gave to LMT, or the $100,000 he gave to Jerry Armstrong to repay his own loan when he was trying to “set the record straight” in this case at the suggestion of Mike Rinder, representing the Church? He had told the Church about these transactions and his lies. Ms. Yingling, one of the Church’s attorneys who was involved in the negotiations between the Church and Minton \ Brooks, and who Minton asked to take a look at his second recanting affidavit before he put it in final form and filed it testified, “And I told him that I thought that was something that he needed to clear up in his affidavit, because I was aware it had not been addressed in the shorter affidavit that had been filed. But I understand from having read the final affidavit, that that suggestion was not taken.” O.H., Yingling, June 11, 2002, p. 105. The Church thought he should recant. (Perhaps they should have reported it to this court when Minton didn’t recant.) The reason he tried to continue his lie is simple: Minton will lie whenever he thinks he can get away with it. He probably thought since the Omnibus Hearing was about whether Dandar lied, and what his role in the McPherson case was that this would never come up and in the event any IRS person got involved, or saw any of this transcript, the only funds they would see would be the $500,000 and $250,000 checks he sent to Dandar. As it turns out, this record now shows over $3,000,000 of foreign money brought into this country, and probably unreported. Tax fraud brings a 50% penalty, plus interest. The taxes, interest, and penalties alone on this extra money, should it be found out, was sufficient for Mr. Minton to continue his lies. “For the love of money....”
Why would Mr. Minton want to bring his lies about the $500,000 UBS checks to the attention of the Church on April 7, 2002? Above all else, Mr. Minton needed for the Church not to find his foreign bank account(s). Minton knew they were getting close to the UBS checks from all the discovery which was being permitted by the courts into his and LMT’s finances. This court had ordered Minton to answer questions he had previously pled the Fifth Amendment to, ruling he had previously waived the privilege as to many of the questions. It was only a matter of time before the Church was going to find out about the UBS checks, which might lead them to his Swiss account—the one he was using to funnel millions of dollars into this country. In fact, the Estate believes the Church already had found out the name of Minton's Swiss account(s) and was using that information to extort or blackmail Minton, although the Church denies they knew of anything beyond that which they had received in the permitted discovery, and say that they still don’t know where his undisclosed Swiss account(s) is. In any event, the Church was getting very close to the UBS checks. Minton was asked at his September 18, 2001 deposition by Mr. Moxin, the Church’s attorney, such questions as “Do you have any bank accounts in Switzerland?” “Have you transferred any money from any Swiss bank accounts to LMT?” Minton deposition, September 18, 2002, pp. 55-56. “What bank or financial institution in Germany have you gone to for the purpose of causing funds to be transferred to Lisa McPherson Trust, Inc.?” “What bank or financial institution in Switzerland have you utilized for the purpose of causing funds to be transferred to the Lisa McPherson Trust?” “Have you gone to any banks ‘or financial institutions outside of Switzerland, Germany, or the United States for the purpose of acquiring funds to transfer to the Lisa McPherson Trust” “Do you have an account at the Discount Bank in Switzerland?” (Note, this deposition taken of Mr. Minton by the Church is the only time I heard this bank mentioned. Is this bank the source of the funds? If so, the Church had either stumbled onto or knew about the source of Mr. Minton's foreign money. Mr. Moxin refers to this bank on pp. 90, 149, 232, 234, of the September 18, 2001, deposition. If I had know this before the Omnibus Hearing, I would have asked Minton about it to see if he claimed the Fifth Amendment.) “Did you withdraw any funds from the Discount Bank that was your own money to be transferred to the Lisa McPherson Trust, Inc. for payment back to you?” “Did you transfer any funds through the Lisa McPherson Trust from Europe, for the purpose of avoiding the payment of taxes?” “Did Ms. Brooks assist you to transfer any funds from Europe to the Lisa McPherson Trust for the purpose of evading taxes?” Minton deposition, Id. pp. 89-91. There were many more questions along this line. Mr. Minton pled the Fifth Amendment to all of these questions and many, many more. I then entered an order that he was to answer most of them, ruling that he had waived the privilege previously. I allowed him to claim the privilege only about his income tax matters, not the names of banks he had used for monies for this case and for payment to LMT. It would be interesting to know if the Church has taken Minton’s deposition, as I permitted. If so, how did Minton answer these questions?
It was in this same deposition that Mr. Minton told many lies about the $300,000 and $500,000 checks to LMT. He also lied about the Armstrong money. See Minton deposition, Id., pp. 116-119; 125-141. He claimed the Fifth Amendment on many, many other questions about these monies. See entire September 18, 2001, deposition. He was asked many times about evading income taxes. He was asked many times about money laundering. He was asked about his employment of Patrick Jost, a money-laundering expert. He claimed the Fifth Amendment over and over on all of these and similar questions.
Mr. Minton claimed at his depositions he was claiming the Fifth Amendment because he had knowledge of an “enterprise” chart—RICO— which Scientology had prepared, and introduced into evidence in another case in federal court, with Minton in the middle of the chart. He now says that explanation for the Fifth Amendment was a ruse, that the real reason he was claiming the Fifth Amendment was to cover up his perjury. But it is obvious there were many other reasons Mr. Minton was claiming the Fifth Amendment. I have no doubt that RICO and perjury were two reasons. I have no doubt that another, more significant reason, was his obvious income tax problems. Mr. Minton knew he had serious problems if the Church---or anyone else---put its hands on his up-to-now-unknown Swiss bank account. He thought the courts were out of hand in the discovery they had permitted into his personal bank accounts, and who knew how far they would go? Would the courts order him to reveal his Swiss bank account(s)? Even if a Swiss bank would not honor a subpoena from an American court, Minton knew he could be held in contempt if this court or any other ordered him to produce bank records, and he refused. And the contempt, and resulting jail, could be perpetual until he complied. It would be civil contempt. He would “hold the keys” to the cell door. He could get out merely by telling the name of his Swiss bank(s). Mr. Minton had many competent attorneys. They would have known this if he asked.
Things got no better for Mr. Minton on October 11 and 12, 2001, when Sandy Rosen took a 645-page deposition in the breach case, where the same matters seemed to be covered and the Fifth Amendment was again claimed many more times. And more lies about the LMT money. See Minton deposition, October 11, 12, pp. 146-150. Mr. Rosen asks, Q: “Do you have a bank account sir, or have you had bank accounts at any time since 1997 as to which they have not been reported to the IRS?” “Do you have bank accounts—have you had any bank accounts since 1997 in any foreign jurisdiction?” “Have you had any bank accounts in a jurisdiction— in a bank located in what we would call a bank secrecy jurisdiction?” Have you ever had any bank accounts at the United Bank of Switzerland?” Mr. Minton claims the Fifth Amendment as to each of these questions. Minton deposition, Id. p. 373. Mr. Minton is asked specifically about a deposit slip, “I notice that this is a deposit slip for Bank UBS. Do you have an account at UBS?” “Can you tell me whether UBS stands for the United Bank of Switzerland?” Minton claims the Fifth Amendment. Minton deposition, Id. p. 425. Bingo!! There it is. The Church had found out or would find out about the UBS checks, would learn the Bank was the Union Bank of Switzerland, and that would lead to their request for the source of those funds. The source of those funds would be devastating to Mr. Minton. He knew the Church played “hardball” in their litigation and would not be the least bit shy to share the knowledge of his funds in Europe with the IRS. 0. H., Minton, May 22, 2002, pp. 693-694, 717; May 24, 1012. In fact, both Minton and the Church were suspicious that the other was causing information to be sent to the IRS already. Minton also believed a Scientology “operative” had “definitely stirred up” the Swiss government regarding criminal charges dealing with a $12 billion dollar business deal regarding his assistance to a Nigerian dictator in something having to do with retiring debt. Minton had made a lot of money off this, and the Swiss government was or is looking into (1) money-laundering, (2) forging of financial documents, and (3) fraud. O.H., Minton,May 24, 2002, pp. 1133-1138. If Minton believed Scientology could “definitely stir up” the Swiss government, he had to really believe they could stir up the IRS in America.
According to Ms. Brooks’ testimony at the Omnibus Hearing, around the first of the year, 2002, Mr. Minton became increasingly upset about the discovery that was taking place. She was worried about his mental health. She asked his permission to contact Mr. Bruce Howie, a St. Petersburg attorney, and have him call Wally Pope, a Church lawyer whom Howie knew, to see if there could be a settlement where Minton could get out of the “mess he was in”. Minton agreed and she called and Howie who contacted Pope early in February 2002. Minton apparently wanted to make a partial settlement with the Church and get out of the discovery, but the Church wanted a “total disengagement.”
The meeting in N.H. between Minton, Brooks, Dandar & Garko occurred in late February 2002. On March 7, 2002, Minton sent Dandar another UBS check for $250,000. Shortly thereafter, Minton called Dandar and wanted him to immediately deposit the check.
“But what is interesting about all of this — and I still don't know the answer to this — is that he was extremely concerned that I hurry up and deposit that check. I don't know — I took it to mean that, you know, something was going on wherever this check came from, because we had a couple of phone calls about that.
Q. You and Mr. Minton had a couple phone calls about it?
A. About something going on in Switzerland, and he was really, really, really concerned about —
Q. Did he say what he was concerned about?
A. Well, it was after this check came, I deposited the check, he calls me up and asks me, “Did the court in Florida send something out to the Swiss banks, like a letter interrogatory, a subpoena for documents?”
A. I said, “Not as far as I know.” I asked him, “Why are you asking me this question?” He said, “Because something is happening in the Swiss banks. And there is a new prosecutor in Switzerland; there is a new judge. They had a hearing about me.” And he suspected Scientology was behind all that because they were behind the false accusations in Nigeria — at least he told me they were false. But he was extremely concerned. And that is when he said I need to hurry up and deposit the check, because somehow his friends and he were somehow implicated in whatever was going on in the Swiss bank.”
O.H., Dandar, June 4, 2002, pp. 313-314.
On March 8, 2002, this court issued an order to show cause why Mr. Minton should not be held in contempt of court. The hearing was set for April 5, 2002. On March 16, 2002, Minton and Brooks contacted Rinder to explore the possibility of a “global settlement.” O.H., Pope, July 17, 2002, pp. 8-17. The meeting was arranged for March 28, 2002, in the New York office of Mr. Sandy Rosen, another Church attorney. On March 28 and 29, 2002, Minton, Brooks, and their attorney, Steve Jonas, met with Mike Rinder, the Church’s representative, the head of OSA, Int., and Monique Yingling and Sandy Rosen, attorneys for the Church. The point of these talks was to attempt “total disengagement,” a “global settlement.” Both sides now wanted this.
This was not the first time that Minton and Brooks had met with Mr. Rinder. Starting in May, 1998, there had been a series of three meetings between Mr. Rinder, Mr. Rathbun, both Church executives, and Mr. Minton and Ms. Brooks. The purpose at that time from the Church’s prospective, at least, was to bring about a “global settlement.” A document was presented by the Church in one of those meetings where there could be a “global settlement” if Mr. Minton would, among other things, stop all funding of anti-Scientology litigation, including funding the Lisa McPherson case. Mr. Minton felt like he would have been giving up “free speech rights about any Scientology issues in the future. And, you know, I just wasn’t prepared to do that at that time.” What Mr. Minton could never explain in his testimony is what he was to get out of the agreement. He said alternatively that he never read it, couldn’t remember, and finally, “You know, it was really a completely one-sided agreement.” Mr. Minton and Ms. Brooks ultimately refused. Mr. Rinder then wrote a letter to Mr. Minton's wife, who was vacationing in England, discussing Mr. Minton's affair with Stacy Brooks. The letter apparently had photographs, and included this language: “While Bob denies that this direct relationship exists, however, I have documentary evidence that on July 24th and 25th 1998, Bob and Stacy are at your home in New Hampshire together. Their affair is alive and well, and the manipulation and deceit continues.” If the letter included a picture, it was one that, according to Mr. Minton, Scientology acquired by trespassing on his property to get. O.H., Minton, May 24, 2002, pp. 960-978; Plaintiffs Exhibit 50. Mr. Minton was well aware that Mr. Rinder played hardball in his negotiations!
Many things were discussed on March 28th and 29th. One of the items discussed which is particularly important to this Motion is that one of the Church’s requirements for “total disengagement” or “global settlement” was that all litigation, including the Lisa McPherson case, would have to “go away”, or be “dismissed”, or be “settled”. O.H., Yingling, June 12, 2002, pp. 157, 159-160; 164, 188-189. Another relevant discussion was that the Church, through Sandy Rosen, presented a list of cases/matters that Minton had cost the Church, listing dollar damage amounts. The total amounted to $34,925,000. (One of those suits has now been served on Mr. Minton, and the damages requested are $10,000,000, and perhaps much more.) One of these matters of damage was research the Church had conducted into a possible RICO suit against Mr. Minton. Minton says at the Omnibus Hearing that the only person who ever brought up RICO was him and that he had no concern about it, but that testimony is contradicted by others at the meeting who say Mr. Rosen brought up RICO as a damage amount the Church had already spent on researching whether the Church had a valid RICO suit against Minton. O.H., Minton, May 24, 2002, pp. 1030-1035; Yingling, Id., pp. 63, 187, 217-219; Brooks, May 7, 2002, pp. 563; 558-560.
Minton and Brooks called Dandar after the first and second day of meetings. Minton said Dandar and Liebreich had to dismiss the McPherson case. He was quite desperate. Minton was asked, Q. (by Mr. Lirot), Did you ever tell Mr. Dandar that if he did not dismiss the wrongful death case that he would, quote, Have the blood and death of you, your wife, and your two daughters on his hands? A. I did say that in the same conversation when I said we’re both going to be destroyed if we keep on this same course. You know, I wasn’t---I’m not anxious to get destroyed here. O.H., Minton, April 19, 2002, p. 153-154. Dandar says, Minton said, “I have just finished meeting with Mr. Rosen and Mr. Rinder in New York City. And they got me. And you have to get Dell to dismiss the Lisa McPherson case right now, Monday morning... .You have to dismiss the case or the blood and death of my daughters, my wife and myself will be on your hands.” Dandar asked Minton why the case had to be dismissed and Minton said, “Because they---they--- got me on---on what I’ve been trying to tell you and I---I just can’t go on. I have got to get this case dismissed now.” Dandar says he asked Minton if it had anything to do with taxes and Minton said, “Just get the case dismissed.” O.H., DandÓr, June 6, 2002, pp. 899-903. Mr. Steve Jonas, Minton's attorney, confirmed in a phone call and in a letter that the Church wanted the McPherson case “dismissed.” O.H., Plaintiffs Exhibit 12. Dandar and Liebreich refused to dismiss the case.
Brooks and Minton also called attorney Dan Leipold and attempted to have him withdraw two affidavits that were about to be filed in that case, pursuant to requests by the Church at the meeting on March 28-29, that Minton bring about dismissal of the Wollersheim case. When Leipold refused, the Church moved to have Leipold disqualified, stating he was using perjured affidavits. Minton tried other tactics with Wollersheim to get him to dismiss the case. The Wollersheim case was over 20-years-old, and finally did settle in the middle of the Omnibus Hearing for over $8 million dollars. The Church had been trying to settle this case for years, but had been unable to do so. O.H., Minton, May 24, 2002, pp. 1018-1024.
The Church had refused Minton's request at the March 28-29 meeting to stop the two contempt hearings, one pending in front of this court on April 5, 2002, and one pending in front of Judge Baird on April 9, 2002. Additionally, Minton’s deposition was scheduled for April 8, 2002. Minton and Brooks came to Florida and Minton eventually called Rinder to resume their talks with the Church on April 6, 2002. Only now, no lawyer for either Minton or Brooks was present. Ms. Yingling continued to be present with Mr. Rinder for most of these discussions, but she was asked to leave the room once, when the crucial “perjury” was about to be revealed, and Rinder and Minton met several times without Brooks or Yingling or any attorney. At the time of the Omnibus Hearing, Mr. Minton estimated the number of meetings he had had with Church officials was 20. At the time of his testimony in front of Judge Baird, he estimated his contacts at 12. He admitted that he had continued to meet with them, up to and including while Stacy Brooks was testifying in front of me at the Omnibus Hearing. Minton says Mr. Shaw, the Defendant’s corporate representative in this case, was present for three of these discussions. Why would Minton first admit perjury to Rinder, with no lawyer for Minton, Brooks, or even Rinder present? No acceptable explanation was ever presented to this court for this bizarre revelation. No acceptable explanation can be imagined!
Mr. Rinder had indicated in New York that if Minton and Brooks couldn’t get Dandar to dismiss the Lisa McPherson case, he believed that if they would “set the record straight”, the case would be ultimately dismissed. It didn’t take a genius to know the issues the Church was most concerned about. Their questions at every one of his depositions were relentless on the “agreement”. They asked questions in his depositions about Minton's role, if any, about adding Mr. Miscavige to the complaint; thus, the “secret meeting” at Dandar’s office. And Minton knew he had lied about the amount he had paid to Ken Dandar, and that they may not know about a $500,000 and $250,000 check he had written to Dandar from his UBS account, which he knew they would find out about in short order if he didn’t tell them. Brooks and Minton knew Rinder had previously asked Brooks and her husband to sign for money what Brooks termed a “false” affidavit to disqualify a lawyer from a case. How easy to say Dandar knew of Minton’s perjury. These revelations would surely make Dandar, if not the McPherson case “go away”, or at least get Dandar disqualified from the case. This, Minton must have hoped, would be enough to allow Minton and Brooks to have their “total disengagement” from Scientology, and would stop the damning discovery and the eventual discovery of Minton's secret bank account(s). Mr. Minton was asked several times in the Omnibus Hearing what was in this “disengagement” for him; he never could provide an acceptable explanation See, for example, O.H., Minton, May 24, 2002, pp.1024-1027. But, it is obvious to this court.
On April 6, 2002, without either Brooks or Minton having counsel present, Minton, after purportedly “gagging” or “throwing up” in the bushes outside Wally Pope's office, told Mr. Rinder first, and then repeated it to Ms. Yingling when she returned to the room that Minton had lied about the $500,000 UBS check (and the $250,000 UBS check, although he hadn’t lied about it) he had given to Dandar, that he and Ms. Brooks had lied about the agreement” regarding the “bulk” of the proceeds, and that Minton had lied about not having anything to do with adding David Miscavige to the lawsuit. They each filed, presumably with the assistance of counsel, a first recanting affidavit, and after more private meetings and other meetings where the Church provided certain highlighted documents to Minton and Brooks regarding their previous testimony, both Minton and Brooks prepared, hopefully with their attorney's assistance, (I know they talked to Ms. Yingling, the Church’s Attorney, about them.) a second affidavit, more elaborate and with additional information not included in their first affidavit. The Omnibus Motion and the 35-day hearing followed. Minton filed at least one other recanting affidavit during the course of the hearing, recanting other lies he had told, which he had neglected to previously correct, even though he was well aware of them. See Minton's fourth affidavit, signed June 3, 2002.
The Plaintiff suggests that the Church extorted and blackmailed Mr. Minton and Stacy Brooks to say they had lied when they hadn’t, or to say Dandar caused them to lie. It isn’t necessary for this court to resolve this issue, since there has been no Motion filed against the Church to dismiss or strike its answer or counterclaim, or any disqualification motion to dismiss its attorneys. I hope there will be none. However, to assist the state attorney, who will receive a copy of this Order, the main witness the state may have to rely on to prove extortion/blackmail is Jesse Prince. His extreme bias against the Church has been discussed by this court on numerous occasions. I find his credibility, based on his previous testimony, and the testimony before me at the Omnibus Hearing, to be suspect. Based on being an admitted perjurer, and the testimony presented before me at the Omnibus Hearing, the credibility of Ms. Brooks is flawed. Mr. Minton has very little credibility based on his testimony before me, especially if he needs to lie for his own good, or his money. Ms. Monique Yingling, the only other witness who testified before me, and who might know the truth about any blackmail and extortion is a noted member of both the California and D.C. Bar. I found her testimony to be quite credible, and do not believe for a moment she would jeopardize her license to practice law by lying, committing extortion, blackmail, or allowing anyone in her presence to do so. Neither, Mr. Rosen, nor Mr. Rinder testified before me, so I have no basis to judge their credibility. However, if Mr. Rinder has done what has been attributed to him, including offering money for perjured affidavits, his credibility is certainly suspect. Perhaps after I have had the opportunity to work with Mr. Rosen, who has recently become the Church's chief trial counsel, I will have an opportunity to personally assess his credibility. I will note, however, that when I inquired, pursuant to his Motion to be admitted pro hac vice in the wrongful death case, I heard nothing from other judges who had worked with him on cases before them which would suggest that he would be involved in such scurrilous activity. This is all I intend to say in this Order about extortion or blackmail.
With all of the above being considered, and having seen and heard all of the witnesses at the Omnibus Hearing, who do I believe was lying at the Omnibus Hearing regarding the $500,000 UBS check issued to Mr. Dandar in May 2000? The answer is Robert Minton. I find that he lied about the $500,000 check not only at his May, 2000 deposition, which he admits, but at the Omnibus Hearing as well. I find that he did not tell Ken Dandar, a member in good standing with the Florida Bar that he was the source of the $500,000 UBS check, any more than he told Stacy Brooks, his mistress, or John Merrett, his attorney, and member in good standing of the Florida Bar, that he was the source of the $300,000, $500,000, or $100,000 checks to LMT. Whether or not this constitutes perjury at the deposition is doubtful, since it was not “material” to any issue in the wrongful death case. It may be material to the breach case, but that is not my case. However his testimony at the Omnibus Hearing was critical to the issues to be decided, and thus, his false testimony therein could be considered perjury. As to Minton's many other lies about the $300,000, and $500,000 checks paid to LMT, his lies about two $100,000 checks paid to Gerry Armstrong, his lies about checks paid to his attorney, John Merrett, his revelation that he had permitted Dandar to use $60,000 he says he loaned to the Estate, to pay himself attorney's fees, the credibility of which is suspect, all of which he failed to correct in his first two recanting affidavits, and most of which he lied about in multiple depositions, including one on April 8, 2002, where he was supposed to be “setting the record straight,” they may well constitute perjury as well. See Minton's several depositions, and his fourth affidavit, dated June 8, 2002. Whether or not he should be prosecuted for perjury is not a decision of mine. A copy of this order will be delivered to the state attorney for any action he may deem appropriate.
I specifically find that Ken Dandar did not lie regarding the $500,000 check at his deposition or at the Omnibus Hearing. I find that Mr. Minton did not tell him that he was the person who caused this check to be issued, but rather told him, just as he told Stacy Brooks and John Merrett, that it was from “friends,” or “people” from Europe, who had an interest in the Lisa McPherson case or the LMT, but wished to remain anonymous due to their fear of Scientology. Minton's motive for all his lies regarding all these checks can be summed up in two words — income taxes. As I said previously in this Order, “For the love of money is the root of all evil
Was there an agreement between the Estate and Bob Minton, or between the Estate and the Lisa McPherson Trust, Inc. (“LMT”) that the “bulk,” or “substantial amount,” of the proceeds obtained from the wrongful death case would be given to him, an anti-cult organization controlled by him, or to the LMT? In a word, the answer is “NO.”
This court has read every deposition of Robert Minton, Stacy Brooks, Dell Liebreich, the sisters and brother of Fannie McPherson, who, along with Dell Liebreich are the potential beneficiaries of any money received by the Estate from this case. I had made copious notes of the testimony given in those depositions regarding this issue. I have not only reviewed those notes, but went back and re-read some of the same depositions a second and third time. I have now had the opportunity to read the Omnibus Hearing transcripts of every witness mentioned above, as well as the transcripts of those same witnesses if they testified at the hearing held in front of Judge Baird on April 9, 19, May 29 and 30. I have read the testimony of Ken Dandar at both the hearings held before Judge Baird and me. I have read the testimony of Dr. Garko before me and Judge Baird. I have read the Omnibus Hearing testimony of other witnesses who have any information about this claim, including, but not limited to, John Merrett, Jesse Prince, and Brian Haney. I have read every affidavit regarding this issue by Robert Minton, Stacy Brooks, Dell Liebreich, Ken Dandar, and others. This court sat through EVERY day of the 35-day hearing and had the opportunity to see and hear the testimony offered on this issue by the witnesses who testified regarding it in front of me. I have read every word of the closing arguments and reply argument as well as the lengthy attachments provided by counsel for both sides. I have actually read these briefs/closing arguments more than once. The amount of time spent by this court on this Motion has been tremendous, and the simple, one word answer of this court above, and the brief explanation below, should not be taken by anyone as evidence of the lack of interest or sincerity of this court to come to the right answer on this issue which is important to both sides.
Unfortunately, I simply do not have the time to go through the testimony, depositions, affidavits, with the depth I did in this Order as to the $500,000 check issued by Minton to Dandar, to explain the conclusion I draw in this Order, although I reserve the right to do so, should time permit, in my otherwise full docket in Civil Division 11. Suffice it to say that I am confident in my decision, and will assume that any reviewing court will read the same materials I have read in reviewing my conclusion.
It is impossible to read the briefs and attachments of the opposing lawyers in this case and get the total testimony, regarding this or any other issue involved in this hearing. The lawyers involved in this case are advocates,, and as such, point out the testimony, etc. that furthers their position. They—neither side, includes all the testimony necessary to resolve this very controverted issue. Suffice it to say; just as I pointed out several times at the Omnibus hearing, what a witness says on one page of a deposition, in response to a question by a lawyer, may be completely different a few pages later. I have read and heard all of it. There was no agreement between the Estate and anyone else Whether or not they had an agreement among themselves is doubtful, but irrelevant.
The Lisa McPherson case was originally filed in February, 1997. Robert Minton met Ken Dandar, the attorney for the Estate in March, 1997. Mr. Minton, who called himself, and believed he was Scientology’s “public enemy #1”, O.H., Minton, May 17, 2002, p. 85, considered the Lisa McPherson case the “banner of the whole anti-Scientology” movement.” O.H., Minton, Id., p. 69. As the financier of many anti-Scientology critics and cases, he wanted to assist Dandar and the Estate in the McPherson “banner case”, and so in October, 1997, he sent a personal check to Dandar and Dandar in the amount of $100,000. By March, 2002, he had given Ken Dandar $2,050,000.
The Church suggests that the Minton money was an investment” for him, but listen to Mr. Minton: “[here was a chance to really nail Scientology.... [I]t looked like this was an open and shut case, you know, it wasn’t going to take forever to deal with it. And, you know, the absolute maximum amount of negative publicity (about Scientology) that could possibly be had anywhere would be through this case.” O.H., Minton, Id. 70.
Q. (By Mr. Fugate) Did you—did you consider---how did you consider your money that you were putting into the case from your perspective, sir?
Well, you know, I---I looked at it as---as a way to further the entire antiScientology activities that I was involved in.”
Q. And did you look at it as an opportunity to get a return on your investment?
THE COURT. You really do have to be careful about leading here. You asked him what he thought of it and he told us. Your next question needs to be ‘anything else’? Don’t be suggesting things to this witness.
Q. (By Mr. Fugate) Really, what did you expect to get with regard to your funding?
A. Well, as I mentioned—you know, there were several things. But as I mentioned, you know the first thing is that this was the sort of flagship case to be used to illustrate how terrible Scientology was. And certainly, anyone who was anywhere near this case or ever read about it expected that this would be a huge black eye for Scientology... .O.h., Minton, Id., p.76-77.
At this point, Mr. Minton begins to discuss his first discussion with Ken Dandar about the agreement”. It is only the next time Minton discusses the “agreement”, in testimony on May 21, 2002, four days later, that he provides the testimony Mr. Fugate apparently expected:
Q (by Mr. Fugate) “Let me ask you this, did you have any belief as to what your funding was doing with Mr. Dandar in the Lisa McPherson wrongful death case?
A. Yes I did.
Q. And what was that?
A. Well, it was a means to secure a long-term funding source to go after Scientology.
O.H., Minton, May 21, 2002, pp. 380-381.
It is obvious what his reason was for funding the Lisa McPherson case. The idea that it was an “investment” was a secondary “hope” of his, nothing more.
Minton says that shortly after he had given his first check for $100,000 in October, 1997, he believes it was in December, 1997, (he later says December 1, 1997), when everyone was down here for the “annual picket”, he had lunch with Dandar. He says that at that time, “Scientology was making a lot of statements that, you know, that Ken Dandar was an ambulance-chasing attorney, and Dell Liebreich was a money-grubbing old woman that had no connections to Lisa McPherson, yet they were, you know, trying for this—you know, the big bucks in this case. (At that time Dandar had told Minton that he thought the case was worth between $80-$100 million.) And I said, well, you know, it would make sense to diffuse that type of rhetoric that was coming out of Scientology for the estate to agree to give the bulk of the money they got, or substantial part I think is what we talked about at that time, a substantial part of that money to an anti-cult group, especially one that was focused on Scientology.” O.H., Minton, May 17, 2002, pp. 77-78.
Minton says the organization he had in mind at that time was FACTNet, where he had been elected to the Board of Directors, effective December 15, 1997, after the discussion. “And you know, clearly in my own mind, that was—that was the target of the estate’s future largesse with respect to the proceeds of this case.” 0 .H., Minton, Id., p.78. Later, when this issue was brought up again, he says he suggested three organizations, American Family Foundation, FACTNet, and one “which I can’t remember right now”, but that “obviously I was keener for him to make sure that this happened with FACTNet as opposed to the other two.” O.H., Minton, May 21, 2002, pp. 374-375.
Dandar said, “this was an idea he already had had and that, you know, he was going to discuss this with the family and, you know, he said he would get back to me on that.” O.H., Minton, May 17, 2002, p 78.
According to Mr. Minton' s testimony, on December 5, 1997 he was in Mr. Dandar's office and, “Mr. Dandar told me that he had discussed the matter with the family---he didn’t say with just Dell Liebreich; he said the family---concerning this concept of donating the bulk of the proceeds or a substantial part of the proceeds to an anticult organization. And that the family had agreed that that is what they should do.” O.H., Minton, May 21, 2002, p. 374.
Based on this—all according to the best testimony Mr. Minton has to offer at the Omnibus Hearing, Mr. Minton goes on a radio show on December 9, 1997, and says “The family of Lisa McPherson has agreed and I have announced this to the New York Times yesterday, that the bulk of funds they get out of this wrongful death suit will be donated to a cult awareness group so that there won’t be any more Lisa McPherson's.” O.H., Minton, Id., pp. 379-380.
Mr. Fugate then asks Minton if he gave a deposition shortly after that meeting in Boston, and implies that he gave testimony that he had an agreement with Mr. Dandar. I wouldn’t let Mr. Fugate refer to the deposition, sustaining objections. See O.H., Minton, Id., pp. 375-376, but all the depositions of Minton are included in the record of this hearing, so let's look at that testimony.
Q. (By Mr. Weinberg): “Is there any agreement whatsoever that you have with Mr. Dandar and/or the family of Lisa McPherson as to how the funds would be used from any judgment that they might get in this case?”
A. “None whatsoever.”
And after discussing much of the same thing about his discussions with Mr. Dandar at the restaurant, he says, of Dandar, “Well, he says, I've already had that idea but I haven't discussed it with Dell Liebreich yet.
Q. Has he since told you that he discussed it with Ms. Liebreich?
Q What did she say?
A. He said she agreed to do just that. The “that” in this deposition was stated, “she ought to just agree to donate the bulk of any money that she gets out of this case to a cult awareness type organization to keep other Lisa McPherson's from happening. That’s it”.
Minton deposition, January 13. 1998, pp. 64-65.
As to the cult awareness group, Mr. Minton says,
“No specific groups were discussed. The only one that was discussed was one that Mr. Lottick is involved in and I---
Q. What’s the name of that?
A. I don’t know what the name of that is.” And as to the amount:
Q. Did Mr. Dandar say what percentage would be donated to a cult awareness group?
A. The bulk, whatever that means.
Q. I’m asking you. Did you have any understanding as to what “bulk” mean?
A. Did I ask him does that mean above 85%?
Minton deposition, Id., pp. 65-66.
From this the “agreement” between the Estate and either some unknown anti-cult group that Minton controlled, or better yet, between the Estate and the Lisa McPherson Trust to contribute the “bulk” of the proceeds to the “Lisa McPherson Trust” was born. Please!! The Lisa McPherson Trust didn’t even exist until October, 1999! Try to sell any court anywhere that there is an agreement between Bob Minton and the Estate to donate the “bulk” of any proceeds they receive to the Lisa McPherson Trust.
Mr. Dandar agrees with most of what Mr. Minton says occurred in December, 1997. The only difference is that he says he checked with Dell Liebreich, not the family, who said it was a good idea. O.H., Dandar, April 30, 2002, pp. 150-151. Actually, Minton says Dandar discussed it with Dell Liebreich at the Baird Hearing. B. H., Minton, April 19, 2002, pp. 64-65. There is not any big difference whether Dandar talked with Dell Liebreich alone or the family, but it probably was with Ms. Liebreich, since all the siblings seem to say they discussed it the night before their May, 1999 depositions. When the family got together for their depositions, they discussed, among themselves that it would be a good idea, and something Fannie McPherson would have wanted, if some anti-cult organization, like a Lisa McPherson “Memorial” or “Foundation”, could be set up to help other people, to donate the “bulk,” “vast amount,” “substantial amount,” majority” of any proceeds they received to such an organization. I use these various terms, because they have all been used at various times to describe the amount that might be given, if the proceeds from the lawsuit were sufficient.
The key to this issue is that these family members discussed among themselves that they might give proceeds from any judgment they would receive to a non-profit organization, named after Lisa McPherson, and set up to assist victims of cults. There never was an agreement between Minton and the Estate, or between the Lisa McPherson Trust and the Estate, or between the family and Minton, or between the family and the Lisa McPherson Trust. That is the agreement that the Church wants to suggest exists and it simply never did.
There are many reasons why there is no “agreement.” with Bob Minton or the Lisa McPherson Trust: (1) Legally, there is nothing that could be called an “agreement,” binding or non-binding between anyone—no tax exempt “cult-awareness group” can come forward to claim any proceeds from this family should they get any, and the LMT doesn’t even exist any more, so they certainly were never and cannot be the beneficiary. (2) The Lisa McPherson Trust was set up in October, 1999, and began operations on November 1, 1999. It closed its operations September 7, 2001. The discussions between Minton and Dandar, which supposedly constitute the agreement occurred in December, 1997, almost 2 years before LMT ever came into existence. (3) When the family got together before their depositions and decided among themselves that they would contribute a sum of money to an organization—a memorial or foundation named after Lisa McPherson, this was in May 1999, 18 months after Dandar and Minton spoke. There was no Lisa McPherson Trust, so they couldn’t have been speaking of it as the beneficiary of these proceeds. (And I feel compelled to point out one thing here: The Church tries to use the July 20, 2000 deposition of Ann Carlson, an 83 year old woman, who fell during her first deposition in May, 1999, and had it continued to July 20, 2000, where she again became tired as 83 year old persons are apt to do, for the proposition that the family wanted these proceeds to go to the Lisa McPherson Trust. In that deposition, she was asked the following:
Q. Now, do you recall testifying at your last deposition (May 25, 1999) that you and your sisters had a discussion about how monies that might be obtained ~either in settlement or from a judgment in this case would be contributed to a foundation for Lisa McPherson to prevent things like this happening to anyone else? Do you remember testifying to that under oath?
Q. Is this trust, the Lisa McPherson Trust, is that the foundation that you were referring to when you gave that testimony?
Carlson deposition, July 27, 2000, p 225.
Please!! At the time of the “last deposition” of Ms. Carlson, May 25, 1999, the LMT did not even exist!! It's one thing to confuse an 83 year old woman; it's quite another to use what cannot be to try to persuade a court.) (4) The family at all times insisted that any foundation that received proceeds would be tax exempt. The Lisa McPherson Trust was a for profit, taxable entity. Mr. Minton acknowledges this, but says LMTs tax status would have been changed once they were about to get the money. O.H., Minton, May 21, 2002, pp. 448-455. We all know, especially the Church, how hard tax-exempt status is to come by. And of course, there could have been no “agreement” between the Estate and Bob Minton, because, as an individual, he can never be tax exempt. (5) Minton says Dell Liebreich confirmed the “agreement” after an LMT Board Meeting on December 1, 2000. when he thanked her for the Estate having agreed to support the “Lisa McPherson Foundation.” She said, “[T]his is what Fannie would have wanted. This is what Lisa would have wanted.” O.H., Minton, April 19, 2002, p. 71. There was no amount discussed, and the name used by Mr. Minton shows what the family wanted—to have a Lisa McPherson tax-exempt Foundation. If anything, this conversation he remembers shows Minton was quite aware of what the family hoped to set up for some of the proceeds, and his taxable Lisa McPherson Trust wasn’t it.
I could go on and on, and quote at length from the depositions, the Omnibus Hearing about how there is no agreement, but I am going to stop. There simply is no agreement—not even one between the family members. If one or more of the beneficiaries decides that he/she doesn’t want to set up a Lisa McPherson Foundation, but instead wants to keep any proceeds he/she may receive, there is absolutely nothing anyone can do to stop that. The family has no “agreement” even among themselves. And without question, neither Bob Minton nor the now defunct LMT has an “agreement” with them. Leibreich, as PR, planned to do what her family decided to do, after they conferred. If they change their mind, so will she. The Estate, therefore, has no agreement with Minton or anyone else. And, of course, Dandar could not bind either the Estate or the family.
Mr. Minton says that Ken Dandar became concerned about Minton's discussion of the agreement, and came by his office, in May or June, 2000 with Dr. Garko, Dandar's trial consultant, to tell him he would have to “backtrack bigtime” about the agreement. Dandar said it was causing problems for the Estate. O.H., Minton May 22, 2002, pp. 630, 666-667. Dr. Garko, who was called by the Church as a witness, and who, having had a disagreement with Dandar over his unpaid salary, has since resigned as Dandar's trial consultant, not only doesn’t confirm this “backtrack big time” conversation, but also says there was no “agreement.”
Q. (by Ken Dandar): Dr. Garko, are you aware of any agreement between me or the estate and Mr. Minton or LMT or Stacy Brooks or anybody where the bulk of the proceeds, if that ever comes about in this case, would ever be given to them?
A. I’m not aware of any such agreement.
Q. How about just a little bit?
O.H., Garko, June 11, 2002, p. 100.
Bob Minton says that Ken Dandar sent him an affidavit to sign indicating there was no agreement, which he signed on December 13, 2000. He now says that affidavit was a lie. Nevertheless, he signed this perjurious affidavit because Dandar said he needed to for the “good of the case.” O.H., Minton, May 22, 2002, p. 637. In fact, the affidavit he signed confirmed what he had been saying, (except on the radio, and in other public appearances where, according to his attorney, he liked to say things to needle Scientology,” O.H., Merreft, May 23, 2002, p. 25.) that there was no agreement.” He now says the affidavit was a lie, and all his deposition testimony, both before the affidavit and after it, where he said there was “no agreement” was a lie—that he “backtracked” for Mr. Dandar.
Mr. Minton’s testimony at the Omnibus Hearing and his recanting affidavit is false for several reasons. First, there was no agreement. Minton testified in many depositions that there was no agreement. Merrett says Minton testified truthfully in his depositions. Second, both Mr. Dandar and Mr. Merrett testified that Dandar never prepared or sent this affidavit for Minton to sign. Mr. Merrett, his attorney, did.
Q. (by Mr. Dandar): Now let's go back to the secret agreement. Do you recall preparing affidavits for your clients to file in the Lisa McPherson wrongful death case concerning the absence of a secret agreement?
A. Yes. I say that. I recall that my clients did, and I believe I drafted them.
Q. All right. Turn to the next Robert Minton affidavit. This is one for him personally, correct?
Q. And this one, was this prepared by you?
A. Yes. Mr. Merrett goes on to explain how he does things like put the caption on the. right, and how he does his jurats, etc.
O.H., Merrett, Id., pp. 31-40.
Frankly, all one needs to do is look at the affidavit signed by Ms. Liebreich, O.H., Defendants' Exhibit # 112, and the affidavit signed by Mr. Minton, O.H., Defendants’ Exhibit #111, and it is obvious that these affidavits were prepared by different attorneys. Mr. Merrett says he sent two affidavits, one to Mr. Minton, and one to Stacy Brooks, and after he received them back, both he and Ken Dandar used them in various filings. He believes that he used them in a Motion for Protective Order to preclude additional discovery into his client's records. He would have delivered them or had them delivered to Ken Dandar for his use as well. Dandar also used Minton’s affidavit. Regardless of who used them, they were prepared by Mr. Merrett, Minton’s attorney, not Mr. Dandar. Dandar prepared his client's similar affidavit. She signed it. It is the truth.
Mr. Merrett says this about the “agreement,”
Q. (by Mr. Dandar): Did you hear while you were representing the LMT, Minton, or Brooks, about the so-called secret agreement? (Note that by now at the Omnibus Hearing, we are using the term “secret agreement” occasionally, to delineate between the “agreement” regarding the loans! donations, and “secret agreement” regarding the proceeds from the judgment/settlement.)
A. I only heard that there was not one.
Q. When did you hear that?
A. At the times that the issue was being raised by Scientology in connection with the wrongful death case, and I assume during deposition prep. But as it cropped up in the course of the litigation, as it was brought to the surface of the wrongful death litigation, is when the subject came up.”
O.H., Merrett, May 23, 2002, p. 19.
When asked about the speeches and Internet postings where Minton would brag about having an agreement, Merrett said Minton liked to “needle Scientology, sometimes, I had the impression, creating disturbance or distraction for Scientology's Office of Special Affairs and those folks.
Q. So radio, newspapers, speeches out in public, Internet postings, he said and did things to rile up Scientology?
THE COURT: Some of which were not exactly true?
A. According to my understanding at the time, yes. For example, the radio statement was not consistent with what I believed, from preparing him for deposition and from sitting through his deposition.
Q. The radio statement was untrue, it was false?
A. Correct. That was my understanding.
O.H., Merrett, Id., pp. 25-26.
Q. THE COURT: And however it was referred to on the radio, in any of these depositions, anything you have seen, did you ever hear anybody talk about any type of what you might or I might perceive of as an agreement?
A. Not as being one that existed. As I say, I heard that radio talk---i heard the allegations made by the defendant and I heard the statements from Mr. Minton that there was not an agreement.
Q. So when your clients said in deposition that there was never any agreement, that did not surprise you?
A. No ma’am. Q. That was consistent with what he (Minton) had told you?
A. Yes ma’am.
O.H., Merrett, Id., pp. 24 1-243.
What this court thinks was going on is the same thing Mr. Minton’s attorney thought was going on—Mr. Minton knew there was no real agreement. “I think Mr. Minton, being in business, knows the difference between an agreement and---Hey, when I hit the lottery, you are fixed, judge. That is not quite the same thing as when we have an agreement where you will kick in for lottery tickets and split the proceeds.” O.H., Merrett, Id., p. 251. Mr. Minton knew there was no agreement. However, I do believe that Mr. Minton was hoping that if there was a large judgment, or settlement and if he set up the Lisa McPherson Trust for the basic purpose the family members hoped to achieve in their Foundation, and if the Trust could be made a non-profit foundation, that the family of Lisa McPherson would appreciate the financial contribution he had made in helping with the costs of the litigation, and reward LMT as the anti-cult foundation they might choose to endow with whatever sum they chose.
Stacy Brooks joins Mr. Minton by stating that she lied in a deposition when she said there was no agreement, when there was. The truth is that Stacy Brooks has absolutely no idea whether there was an agreement or not. Even in her first affidavit, signed April 17, 2002, she says “A) to the best of my knowledge and belief, there was an agreement among Dell Liebreich, Robert Minton and Kennan Dandar, Esq....” She knows what an affidavit (declaration) is. She uses the language I underlined nowhere else in her affidavit. The only thing Stacy knows is that she was present at some dinner where she says there was a brief discussion of LMT and financial support, by Dell Liebreich, but this occurred long after the “agreement” was supposedly made. And others at the same dinner differ over the discussion. Minton, in an effort to explain his inconsistent deposition testimony that he never spoke to Liebreich about the agreement said at the Omnibus Hearing that he had forgotten about the discussion at the dinner meeting until Stacy reminded him about it. Of course, his deposition testimony was only a few months. after the discussion supposedly occurred. This dinner chat, if it ever occurred, adds nothing to an agreement that never was. See also the testimony of Teresa Summers, a former executive of LMT, “Well, I spoke with Stacy about that (the agreement between the Estate and the Trust or Minton) because I—the allegations were being made, I believe in depositions, that that was the case. And, Mmm, and I did ask Stacy. And she said, “No, you know, certainly that is not true. It is just what the Church is trying to drum up to create problems.” O.H., Summers, June 6, 2002, p.99. Stacy Brooks had some recanting to do about lies she had told in her depositions about LMT discovery violations, but she. knew nothing about any agreement. Stacy is simply trying to help her financier, and the man she loves, any way she can.
Why did Mr. Minton lie about this “agreement” in his recanting affidavit, and in his Omnibus Hearing testimony? For the same reasons I have previously discussed that he lied about the $500,000. Without question, Minton knew how important the “agreement” was to Scientology. The many depositions of Minton, Liebreich, and family members were filled with questions about this agreement, or lack thereof. The “agreement” is one of the central themes in the Church's counterclaim for abuse of process. Both the Church and Minton knew that if the court believed both Dandar and Liebreich were lying about this agreement, the case might be dismissed, just like Rinder told Minton he needed to do, and he would have Scientology out of his life---total “disengagement.” His Swiss bank accounts would be secure and the source of his money would remain secret.
I find that Mr. Minton lied in his recanting affidavit and at the Omnibus Hearing about the agreement. I find that neither Mr. Dandar nor Ms. Liebreich did. Stacy Brooks' testimony as to this issue is too insignificant to make any findings.
MINTON’S CONTROL AND THE SECRET MEETING
Who was in control of this case, was it Bob Minton, or Dell Liebreich, as assisted by her attorney, Ken Dandar?
According to Mr. Minton and Ms. Brooks, Brooks and Prince did not think Dandar was focusing on the “Scientology aspects” of the case.
Q. (By Mr. Dandar): When did you come to think that I was now focusing on Scientology aspects of the case.
A. Well, when---when David Miscavige was added as a party, when Jesse and Stacy were going to these depositions with you. You know, that is the general time frame, there was obviously a clear focus on it.
O.H., Minton, May 24, 2002, p. 1011.
The reason Brooks and Prince thought they should be in the depositions of other Scientologists is because there were “Scientology methods” of taking depositions that could get more out of a witness, especially a member or past member of the Church who was accustomed to auditing. Dandar didn’t understand this, but Stacy and Jesse did. If they could attend the depositions, they could help Dandar with the “Scientology methods.” O.H., Minton, May 2, 2002, pp.1012-1013.
The discussion in question where Mr. Minton told Mr. Dandar he needed to stress the Scientology aspects of the case more occurred in Philadelphia in August, 1999. Mr. Dandar was there taking a deposition of a doctor in another case. He, Mr. Minton, Ms. Brooks, Rod Keller, Charlotte Kates, and perhaps others had dinner together. According to the testimony of Minton, before dinner, the three of them met, and Minton, or Brooks in Minton's presence, said he needed to emphasize the Scientology aspects of the case more than he had been. Minton is asked, by Mr. Dandar,
Q. And did I listen to that suggestion that you made?
A. I believe you did.
Q. How? A. Well, I mean, you subsequently added parties. You subsequently started using Stacy and Jesse more for these depositions.
Q. Mr. Minton, isn’t it true that before that dinner in August of ‘99 in Philadelphia, I had already been meeting with Jesse Prince and Jesse Prince’s affidavit on the culpability of David Miscavige in the death of Lisa McPherson was already done, typed up, signed and sealed?
A. Seven---six days before, in fact.
Q. Right, so you certainly didn’t have any input on that, did you?
A. Well, not on that affidavit. I mean, Stacy had input on that affidavit.
0.H., Minton, May 24, 2002, p. 1090.
Ms. Brooks says she had input getting Mr. Prince in the right frame of mind to write the affidavit. There is no question that Prince wrote his affidavit at Dandar’s office and that it took him several days to do it. Since Prince’s affidavit was written, and it was---as the Church likes to say, the sole basis Dandar had to add Miscavige, it stands to reason that the Philadelphia discussion was not about adding Miscavige. That decision had already been made. The Philadelphia meeting was brought on by Stacy and Jesse’s complaints that Dandar wasn’t using them at the depositions, and Mr. Dandar did use them more, at least temporarily, after this meeting. So to the extent that Minton caused Brooks and Prince, Dandar’s consultants, to appear at more depositions, he may have “interfered” with the case. This is very insignificant, and certainly no violation of the Code of Professional Responsibility.
Any thought that Mr. Minton’s Philadelphia discussion or check after dinner was any impetus for adding Miscavige is totally destroyed by Mr. Minton’s Omnibus Hearing testimony when he makes it crystal clear that he did NOT want Mr. Miscavige added as a party as it would cost him more money. Brooks confirms this and it is not in dispute. Additionally, if anything else needs to be said about whether Mr. Minton controlled Mr. Dandar’s thought processes, Mr. Dandar wrote a letter to his consultant, Vaughn Young, in May, 1997, before he ever met Mr. Minton, and says, “I am also enclosing a copy of the proposed amended complaint. I intend to sue David Miscavige as managing agent. (Emphasis mine.) Would Mr. Miscavige have personal knowledge of those in isolation and their condition? O.H., Defendants' Exhibit # 73, emphasis mine. The Philadelphia meeting was not about adding Miscavige, which Mr. Minton did not want to do, but about using Ms. Brooks and Mr. Prince more at depositions. Also, see discussion below about the “secret meeting”, which now appears to be the centerpiece for the supposed Minton control about Mr. Miscavige being added.
As to the allegation that Mr. Minton's first $100,000 was the impetus for Dandar to allege intentional murder, even Minton doesn’t really support that.
Q. (by Mr. Dandar): Now, Mr. Minton, you have also alleged that because of your infusion of the check for $100,000 in October of ‘97, I completely changed the allegations of the complaint and made it into a murder---a murder wrongful death count. Is that your---?
A. I didn’t say you completely changed the allegations. I said you included the word “murder.” You clearly made it---you had already indicated your willingness to make it an intentional death case.
O.H., Minton, May 24, 2002, p. 1094.
Intentional death equals murder. This allegation did not come until the 5th Amended Complaint, as the Church has stated many times. If one reads the first complaint, and the first amended complaint, it is clear that the general allegations regarding the death of Lisa McPherson did not change. The word “murder” is mentioned in the general allegations of the First Amended Complaint, discussing the Introspection Rundown, along with “suicide” and insanity”. What really changed is that the First Amended Complaint is greatly expanded from a one count complaint to a 14 count complaint, alleging everything imaginable, and filed one day before the statute of limitations ran out on the wrongful death count. There was much more included about the Church and its alleged operations and practices. According to Mr. Dandar, and confirmed by Mr. Young and Ms. Brooks, Mr. Young had been working with Mr. Dandar to assist him in understanding the operations of the Church, as he knew nothing or very little about the Church when he took the case or drafted the initial complaint. Mr. Minton’s $100,000 didn’t change the original complaint. Mr. Dandar’s “knowledge” about Scientology, gleaned from Vaughn Young and Stacy Brooks did. I put “knowledge” in quotes because I do not have enough “knowledge” about Scientology's operations or practices to know whether Mr. Dandar’s general allegations in the First Amended Complaint, or the Fifth Amended Complaint, for that matter, are correct, and I am sure the Church takes exception to many of them, including the one mentioned about the Introspection Rundown.
The intentional murder allegation didn’t come until the Fifth Amended Complaint. This is the same complaint where efforts were made originally to add various corporations, and individuals, and when that failed, to only add one individual, David Miscavige, as head of the Sea Org, instead of David Miscavige, as COB of RTC. It was this addition of Miscavige and the intentional murder allegation that has caused the “sham pleading” allegations. Minton tried to help the Church by stating in his first recanting affidavit that he was at a meeting in July or August where a decision to try to add all the parties had been made. This turned out to be false. So, let's discuss “the secret meeting.”
The first pleading to attempt to add Mr. Miscavige was served on September 7, 1999. Although this was the first attempt in court, the decision had been made to do so either before the writing, during the writing, or when Jesse Prince completed his affidavit, which was on August 20, 1999. In his affidavit, he mentions all the corporations, (RTC, and CSI), and individuals (Miscavige, Rathbun, and Mithoff), who Prince said would have known about Lisa McPherson's case. See Prince Affidavit, August 20, 1999, 39-44. It is within these same paragraphs that the intentional homicide is purportedly supported. Prince, Id. 43-44. Mr. Minton had been asked in his deposition whether he had anything to do with, or whether he had had any discussion with Mr. Dandar regarding adding David Miscavige (or any of the other defendants) to the Fifth Amended complaint, and he said, “no.” See, for example, Minton deposition, October 11, 12, 2001, pp. 393, 629. He now says that testimony was a lie. He now says he was at a meeting where this was discussed—the “secret meeting.”
To show the extent to which Mr. Minton will lie to help get this case dismissed so he can have “total disengagement” from Scientology, the recanting affidavits and testimony in front of Judge Baird must be explored. Mr. Minton must have been shown or told that the Motion to Amend to add Miscavige and others was filed September 7, 1999, and that the key fact in the breach case was a motion to amend to add 5 parties, one of which was David Miscavige. If he had not been previously told, he certainly was told in the April 9, 2002 hearing in front of Judge Baird, key when questioned about it by Mr. Rosen. Mr. Rosen asks him the following:
Q. Let me address one other issue with you. Sir you’re aware that the key issue in this case (breach case)---I shouldn’t say issue, the key fact in this case is a motion to amend the wrongful death case to add five certain parties that was filed by Mr. Dandar on September 7. 1999. Are you aware of that, that that’s what this case is about?
A. Yes. I am.
After asking Minton if he hadn’t testified before that he had nothing to do with this and eliciting Minton's response, he asks:
Q, Would you now---are you now prepared to purge yourself of that contempt and to recant that testimony, sir?
A. Yes, I am....
Q. I’m only asking you to tell us what you have personal knowledge of, sir.
A. Sometime in July or August of---what year was it?
Q. The motion to amend was added September 7th, 1999.
A. July or August of 1999 I flew into town to Tampa Airport for the purpose of having a meeting at Ken Dandar's office, an important meeting.... At that time, present at that meeting were myself, Stacy Brooks, Jesse Prince, Michael Garko and Ken Dandar. And this meeting went on for two or three hours and the sole purpose of the meeting was to discuss adding these additional parties to the wrongful death case.
O.H., Minton, April 9, 2002, pp. 11, 16-18.
This is all false, which will be seen.
Other testimony he gives at this hearing which turns out to be false is that he says he lied in his deposition when he said he said he was not in favor of this, and lied when he said he had told Ms. Brooks that it would complicate the case and cost money. O.H., Id., pp. 13, 13-14. He says it was at this meeting that he first learned of Dandar’s intentions to add Miscavige. O.H., p. 17-18. All four of the people, Dandar, Garko, Prince, and Brooks were “strongly in favor” of adding Miscavige. O.H., Minton, Id., p. 18. Dandar discussed his strategy as to why he wanted to add these additional defendants. O.H., Minton, Id., p. 18. Almost all of this is also untrue, and Minton later admits most of it is untrue.
The one thing he said at the O.H., that should have made it apparent the date was inaccurate was that Dandar followed him, Brooks and Prince “down in the elevator” and told them that “we should never discuss that this meeting ever occurred in any way.” O.H., Minton, Id., p. 19. The key word here is “elevator”. Ken Dandar moved his office and moved into a building that had an elevator on November 1, 1999, two months after the September 7 Motion to Add Parties about which Mr. Rosen was questioning Minton.
In his first recanting affidavit, signed April 17, 2002, Minton says, “12. I have previously made the statement under oath in this cause (the wrongful death case) that I did not discuss adding parties as defendants in this cause with Kennan Dandar. This statement was false. In truth, I did have a discussion with Kennan Dandar in or about July or August, 1999 about adding defendants in this cause, although I was opposed to the idea and was not aware at that time of the written agreement between the Plaintiff and the Defendant CHURCH OF SCIENTOLOGY not to add certain defendants.” Emphasis mine; all caps in original. Notice that he has corrected the fact that he was in favor of this from his April 9~ testimony, but still has the wrong, but important to the Church, date. He still has his false statement that they talked about adding parties as defendants.
Although Mr. Minton talked to Dr, Garko on April 14, 2002 prior to first affidavit and his testimony in front of Judge Baird on April 19, 2002, and thus, had to know that his testimony on April 9, 2002 was inaccurate, he did not correct his many inaccuracies from the April 9, 2002, hearing in front of Judge Baird when he again testified on April 19, 2002. In his second affidavit, signed April 24, 2002, he now says this meeting occurred in the “fall of 1999.” There is no suggestion of adding multiple Defendants, only David Miscavige. He now says that he was “opposed” to adding Miscavige. Thus, he corrects at least some of the inaccuracies at his April 9 testimony in front of Judge Baird in his second affidavit. It is unknown if this second affidavit was ever given to Judge Baird.
In fact, one of the few things that is clear about this “meeting” is that it did not occur before the Plaintiff attempted to add Miscavige and others in September, 1999. Judge Moody denied the Motion as to corporate defendants on October 22, 1999. Ken Dandar moved into his new office, where everyone agrees this “meeting” was held, on November 1, 1999. On December 21, 1999, the Fifth Amended Complaint was filed, adding David Miscavige as head of the Sea Org, thus avoiding the agreement not to add corporate defendants. The motion that was filed to do so was heard in early December. Thus, this “meeting” happened between November 1, 1999 and early December, 1999, if there ever was a “meeting.”
What does everyone now say about this “meeting”? Minton says before me that everyone gave his or her views: Dandar was “extremely favorable.” He says Dandar said it would cause good publicity and cause a better settlement. His recollection was that Dr. Garko, was in favor of it, but Brooks and Garko reminded him of something Garko had said, and now he says Garko was not in favor of adding Miscavige. Prince was in favor of it. Brooks was the “most enthusiastic about it because, you know, this has been a drum she has been beating for a long time.” Minton now says, consistent with his deposition testimony, but contrary to his testimony in front of Judge Baird, that he wasn’t in favor of it for one reason, “because of how much more money this was going to cost.” He says he asked one question at the meeting, “What about Ray Mithoff, and was told,”that is not a pressure point.” At the end of the meeting, he told Dandar, “Look, whatever we decide to do on this thing, I will support you 100%. You know, you need to talk about this with Dell. And whatever we decide, I’ll support you.” Notice the attempt to be helpful to the Church by saying “we”. There is no suggestion he was ever consulted about the final decision by any witness, not even himself. When they left, Dandar went down on the elevator with Brooks, him and Prince and said, “look, this meeting never happened and we can’t talk about it.” Minton typically said about lying, “O.K.” And because of Dandar, again, he lied about this when asked in his deposition if he had been involved in any way in the decision to add Miscavige. O.H., Minton, May 17, 2002, pp. 148-157.
Stacy Brooks says the same 5 people were there.. Dandar said, “Listen, I want to get some feedback from you guys about whether or not I ought to add—-whether or not I---try again to add Miscavige.” Ms Brooks says this was her “pet strategy”, so she said “yes.” Minton didn’t say much until the end of the meeting where he said, “Actually, I’m afraid that this is going to add an enormous amount of cost to the case. So to that degree, I don’t think it’s a good idea.” Notice that there is nothing even from Stacy about “whatever we decide”. Dr. Garko objected “strenuously.” Apparently Prince was in favor of it, although she doesn’t really say so. Dandar doesn’t talk until the end of the meeting, where he says, “11mm, well, I’ll think it all over. Thanks for your input.” Notice there is nothing about Dandar discussing the reasons Minton says he discussed. O.H., Brooks, May 3, 2002, pp. 109-111. Later in that day of the Omnibus Hearing, she is asked about her affidavit, and she only then remembers the elevator. She says everybody went down in an elevator and there was a comment made by Mr. Dandar, “By the way, this meeting never happened.” She thought he meant that Minton shouldn’t have been in on a strategy session. O.H., Brooks, Id., p.131-132. When asked if Minton flew to Tampa to have a secret meeting to add Miscavige, as suggested by Minton in his affidavit, Ms. Brooks say, “[H]e didn’t fly there for that reason. O.H., Brooks, May 14, 2002, p. 1248. She was also asked about Garko’s recollection,
Q. Okay. And did you discuss with Dr. Garko his recollection of whether or not Robert Minton ever participated in any meeting with my—with trial consultants and myself to add on David Miscavige individually to the wrongful death case?
Q. And did---isn’t it true that Dr. Garko told you Robert Minton was not part of that meeting?
O.H., Brooks, Id., p. 1250.
The Dr. Garko situation is an interesting one. Dr. Garko was Dandar’s trial consultant in the Lisa McPherson case. He appeared with him in court, at depositions, was his chief trial consultant. He would have assisted him at trial in picking the jury and done other important things. Apparently, he had a financial arrangement with Dandar that included a monthly retainer against which he worked on an hourly rate. At some point in time, around September 2001, Dandar told him he couldn’t pay him his retainer because he had no money and he had to use his retirement funds to finance this case. When Dandar went to New Hampshire to try, to get money from Minton, Garko went with him. When Dandar received the $250,000 check from Minton in March, 2002, he apparently did nothing to pay Garko his back pay. When Garko heard about the $250,000 from Luke Lirot on April 9th, after the first Judge Baird hearing, he and Dandar had a severe argument about his not being paid.
At the conclusion of the April 9, 2002 hearing, Mr. Rosen indicated to Judge Baird that based on Mr. Minton’s false testimony that Garko wanted to add Miscavige to the 5th Amended Complaint, that the Church was going to file an amended complaint, seeking punitive damages, and also adding Garko as a Defendant. After their argument on April 9, 2002, Dandar and Garko never spoke again until Dr. Garko was called as a witness before me on June 11, 2002, by the Church.
On April 14, 2002, Dr. Garko paid a visit to Mr. Minton and Ms. Brooks. They discussed Mr. Minton’s funding, and Garko complained about not being paid. They talked about the “meeting,” with Garko and Minton disagreeing about it, Garko saying there never was a “meeting”, but merely a drop in by Minton and Brooks where it was briefly discussed. They also disagreed about other aspects of Minton's recanting affidavits.
On June 10, 2002, Mr. Weinberg asked to be excused from the afternoon session, indicating he needed to go back to his office. O.H., June 10, 2002, p. 84. He was excused. What Mr. Weinberg did was go to the office of Garko’s attorney, Lansing Scriven, and meet with Garko, after Garko was served with a subpoena to be the Church’s next witness. Garko had also been given a letter from Mr. Weinberg in which Weinberg represented that the Church was going to withdraw its motion to add him as a defendant in the breach case. Additionally, at the meeting, in Garko’s attorney’s office, he was provided with a release and covenant not to sue which was executed by the Church as to Garko and his company as it related to any participation by him or involvement concerning the Church of Scientology.
On June 12, 2002, the day after Dr. Garko testified for the Church in the hearing before me, he resigned as Dandar's trial consultant. Does Dr. Garko help the Church in his testimony? Not really.
Dr. Garko says in his testimony at the Omnibus Hearing there never was a meeting. He says Mr. Minton and Ms Brooks stopped by Dandar's new office as they did from time to time. They just showed up. He says they sat down in the conference room to talk casually, and that the subject of adding Miscavige as a defendant came up. He says he was against it and explained why: (1) There was no direct evidence that Miscavige ordered that Lisa McPherson be allowed to die, (2) there was an improbability of serving him, and (3) that he thought the agreement might still be a problem. He knows the meeting was not before the first time they tried to add Miscavige and the others. It was either before Miscavige was added the second time or after he had already been added to the 5th Amended complaint. He says Brooks said, after he had his say, “And why did you add him, Ken?” This took him aback and it is the reason he remembers the occasion. He thought, “What the hell is she doing?” Because it was Ms. Brooks' idea to add Miscavige. (If this comment by Brooks was made, it would seem this discussion occurred after the motion to add Miscavige as head of the Sea Org was made.) He says Minton didn’t say too much, in his “very typical fashion. He was quiet, somewhat aloof, and lust sort of sat there”. Mr. Prince was not there. He does not remember Mr. Dandar going to the elevator with Minton and Brooks when they left. He knows. he did not Jesse Prince says Minton was never at a meeting where adding Miscavige was discussed. There were several meetings he attended where Dandar and his consultants attended, but not Minton. He did not want to add Miscavige, as he thought it would make the case cumbersome. Brooks was the one who really wanted to add him. Dr. Garko was hesitant about adding him. I didn’t see where he discussed Dandar's view in any meeting, although his testimony was lengthy and I could have missed it. O.H., Prince, July 9, 2002, pp. 566-579.
Mr. Dandar says that Minton attended none of his meetings regarding adding Miscavige. He says he remembers a meeting where Brooks, Prince, Garko and he discussed it. He remembers Brooks being a big proponent of adding Miscavige as head of the Sea Org. He listened to his experts/consultants, but nothing was decided until he talked to Ms. Liebreich about it. He knows he never took any elevator ride to have any conversation with anyone about not talking about it. He says he would never need to say that to Brooks/Prince, his experts/consultants—it would go without saying. And Minton was never there for any such meeting. O.H., Dandar, June 4, 2002, pp. 274-279.
This issue can never be resolved. It isn’t a matter of resolving a difference between two people. No one remembers this encounter the same. However, one or two things are certain. Assuming Minton had an opinion, it was don’t add Miscavige. He was added. That shows Minton’s measure of control!! No one remembers a meeting where Minton was present where it was a planned strategy meeting, except Minton. He is obviously wrong. Even Stacy Brooks knows they came down to Florida for something else. Assuming this encounter occurred, it was not a strategy meeting, but an encounter, where the subject of adding Miscavige came up during casual conversation. There is insufficient proof that Mr. Dandar asked Mr. Minton not to say anything about the discussion. If Minton lied at his depositions, which is doubtful, he did it on his own. Frankly, even if Minton were there, the only thing wrong with it would be that it might allow discovery into the meeting. If Ms. Liebreich had no objection, Mr. Dandar could casually discuss this subject in front of Mr. Minton or anyone else. Minton obviously was not in control of the decision making process. It was ultimately decided to add Miscavige, contrary to Minton's wishes. The decision to add Miscavige was made by Ms. Liebreich, after discussion with her lawyer.
Minton tried at the Omnibus Hearing, contrary to his deposition testimony, to suggest he had control of the McPherson case. He really didn’t. Some examples: He thought it would be a good idea if Dandar got a large law firm to participate with him. It didn’t happen. Minton thought Attorney Dan Leipold, an attorney who has litigated against Scientology in the past; should be brought into the case. It didn't happen. Several times, Minton wanted to get the case dismissed or settled. It hasn't happened. Brooks, trying to help Minton to get the case dismissed, wanted to fly to Texas to see Dell Leibreich to try to get her to have the case dismissed. Dandar said no. It didn’t happen. Minton wanted Scientology as a valid religion to be challenged. It hasn’t happened. Minton didn’t want Mr. Miscavige added; it would cost too much money. Miscavige was added.
The Church suggests in its closing argument, since the Omnibus Hearing made it obvious Minton didn’t control the case, that it is not necessary that Minton have control, but that he “interfere” with the case. Minton didn’t even do that. As Dr. Garko has said,
Q. (by Mr. Dandar) Does he (Minton) have anything to do with running the case?
A. Do you mean day-to-day decision-making?
Q. Day-to-day decision-making?
A. No. No.
Q. How would you describe Mr. Minton’s association with the day-today operation of the case, strategizing, decision-making, etc.
A. I can only speak from my experience and what I observed of Mr. Minton' s behavior. I would describe it as hands-off, laissez-faire, aloof.
Q. Would you agree or disagree that to try to talk to Bob Minton over the two-plus years about the case was like pulling teeth? I would agree with that.
O.H., Garko, June 11, 2002, pp. 96-97.
Dandar agrees with Garko. He says Minton neither controlled, nor interfered with the McPherson case. It was like “pulling teeth” to even get invited to discuss the McPherson case.
Dandar relied on his consultants and experts and their opinions in making his assessments, which he then relayed to Ms. Liebreich. What he didn’t know was that some of these anti-Scientology critics that he used as consultants/experts couldn’t be trusted. Stacy Brooks, based on her testimony at the Omnibus Hearing about how she prepared affidavits/declarations, is a prime example. Based on her testimony, it would seem that every affidavit/declaration she has eyer filed in any case is suspect. O.H., Brooks, May 3, 2002, pp. 33-37. Regardless, armed with the opinions of his consultants and experts, Ms. Liebreich, with the advice of Mr. Dandar, made the decisions and controlled this case.
DESTRUCTION/REMOVAL OF LMT RECORDS
If this claim had been made against Bob Minton or Stacy Brooks, or their attorney, John Merrett, I would be happy to write about it. It would not be pretty. However, there is no proof that either Ms. Liebreich, or Mr. Dandar had anything to do with the removal or destruction of items ordered in discovery by numerous judges. An order to show cause was already filed against Mr. Minton regarding this. A technicality prevented this court from adjudicating the contempt and he was, accordingly, found not guilty. Ms. Brooks may face an order to show cause from this court regarding her role in this case, which includes lying about destruction/removal/tampering with records, hard drives, videos, computer records and the like. The Florida Bar will be receiving a copy of this order and if they are inclined, they can determine if Mr. Merrett’s removal of the various videotapes from the premises of the Lisa McPherson Trust was in violation of court orders. If they were, the Bar may wish to pursue disciplinary action. Merrett is no longer counsel of record for anyone involved in this case, so I will not address his involvement further. As to Bob Minton, double jeopardy probably prohibits his being ordered to show cause why he should not be held in contempt for his discovery abuse, including his destruction, removal, and tampering of his personal records, as well as records, hard drives, videos, computer records and the like, of LMT. But there is no double jeopardy for Minton’s perjury. Since Bernie McCabe, the State Attorney, will receive a copy of this Order, I will not do an order to show cause until he has had the opportunity to examine this record. In the event he declines to prosecute, this court will do an order to show cause. If he does decide to prosecute, this court will not interfere with the jurisdiction of the state attorney, since my doing so could cause him double jeopardy problems.
DISQUALIFICATION OF COUNSEL
“It is well settled that disqualification of a party's chosen counsel is (1) a harsh and drastic remedy, (2) should be resorted to sparingly, and (3) must find its basis in counsel’s violation of some rule of law or breach of the Code of Professional Responsibility resulting in an unfair advantage.” Kusch v. Ballard, 645 So. 2d 1035, 1040 (Fla. 4~h DCA 1994). Stevenson, J., concurring in part and dissenting in part, emphasis mine.
This court has now determined that Mr. Dandar has not committed perjury, nor has he suborned perjury. He has not violated this and other court’s discovery orders such that would disqualify Plaintiffs chosen counsel from finishing this case that he started when the first complaint was filed in 1997---5 years ago. He did not permit Minton to “control” or “interfere” with this case such that the Code was violated. He did not file a “sham” pleading.
Suffice it to say that this has been one of the most hotly contested cases that this court has seen in her 20 years on the circuit bench. To suggest that recently retained co-counsel could try this case without Dandar’s necessary “history” that is required in every hearing, and that may be vital to the trial of this case, is absurd. This was obvious during the Omnibus Hearing, when Dandar tried to let co-counsel, Luke Lirot, handle that hearing. It became necessary for Dandar to get up and down from counsel table constantly to hand notes to Mr. Lirot, which became distracting to both the witnesses and this court. This court finally suggested that Dandar had not been disqualified and could handle this hearing himself. When Dandar took over questioning of the witnesses, during the cross examination of the Church's first witness, Stacy Brooks, all that distraction stopped, as Mr. Dandar had the requisite “history” to conduct the examination without assistance.
The Church has been fortunate to have no fewer than seven counsel representing it throughout these proceedings—Mr. Weinberg, Mr. Fugate, Mr. Moxin, Mr. Lieberman, Mr. Hertzberg, and recently, Mr. Rosen and Mr. Drescher. Five of these lawyers have been representing various Church of Scientology entities for many years. They were well aware of the “history” of previous litigation, which seems to inundate this proceeding (usually without much relevance, I might add). They are well aware of the policies and teachings of the Church.
As Mr. Dandar has testified, when he first got involved in this case, he knew little about the Church, and when he filed his first complaint, it was a one count complaint, limited in general allegations, because of that lack of knowledge. Over the years, he has come to be more astute on such things as prior litigation, Church policies, teachings, etc. which may or may not be relevant to the trial, but are extremely relevant to litigate many of the complex issues raised by the parties. Thus, to remove Mr. Dandar one week before the scheduled trial would cause tremendous prejudice to the Plaintiff. Even if this trial date is continued, neither Lirot, nor any other counsel, could obtain the knowledge of the Church of Scientology aspects of this litigation like Dandar has. It is true that the Church recently substituted Mr. Sandy Rosen for Mr. Sandy Weinberg as lead trial counsel for the Church. However, he was lead counsel in the related breach case, and co-counsel in the probate case, and has been a lawyer for the Church for many years. His coming on the case for trial cannot be in any way compared to substituting trial counsel for Ken Dandar.
There is no need to cite more case law for the generally known, and obvious law, that disqualification of a party’s chosen attorney is an extreme remedy that should be employed sparingly. The reasons for this are obvious, and need not be recited here. What this motion is NOT is an allegation of a conflict of interest such that brings into play an irrefutable presumption that mandates disqualification whether there has been a violation of the Code or not, such as discussed in State Farm Mutual Automobile Insurance Co. v. KA. W, 575 So 2d 630 (Fla. 1991). The real graveman of that case, and others like it, is as the Church suggests in its moving papers, the “fair administration of justice”, what I call a level playing field. The Court states it as follows: “Our legal system cannot function fairly or effectively if an attorney has an informational advantage in the form of confidences gained during a former representation of his client's current opponent.” State Farm, @ 632, emphasis mine. A conflict of interest is what brings the vast majority of disqualification of counsel cases. It happens, for example, when an attorney leaves one firm and joins another and there is a case going on at his new firm that was going on when he was an attorney at his old firm. These cases involve the question, do the circumstances present afford “one party an unfair advantage over the other.” State Farm, @ 632. This case, and all like it, suggest that in conflict interest cases, such as the one in State Farm, the appearance of impropriety is such as to require an irrefutable presumption that confidences were disclosed if the “matter in which the law firm subsequently represented the interest adverse to the former client was the same or substantially related to the matter in which it represented the former client.” State Farm @ 633, emphasis mine. This issue is not present in this motion.
What about cases such as Henriquez v. Temple, 668 So. 2d 638 (Fla. 3d DCA 1996)? The Third District Court of Appeals upheld the trial court’s power to punish an attorney by disqualification if counsel defied a court’s order. The lawyer’s behavior offended both the trial court’s and the Third District Court of Appeal’s sense of “fair administration of justice.” Underlying that case, however, was still an unfair advantage, an uneven playing field. In that case, the judge ruled the attorney could not have something, and the lawyer proceeded to get it anyway, despite the judge’s order. We must assume anytime a judge rules an attorney should not have something, if he obtains it, he has gained some advantage he shouldn’t have had. In fact, the trial judge in Henriquez ruled, in disqualifying the attorney, that he was to remove the ill-gotten document from his file before he turned it over to the next lawyer, and he was to have no discussion with the succeeding lawyer about the document. In any event, this is not a case where this court has held that Dandar violated court's orders. Minton, Brooks, and LMT’s attorney, John Merrett, may have defied court orders, but this is not about disqualification of John Merrett. Even if Dandar had defied this and other court’s discovery orders, there still may have been no prejudice in the wrongful death case. I need not address that in light of my rulings in this Order, but suggest that none of the alleged discovery abuse, and later acquired discovery, will be admissible in the wrongful death trial— only in the abuse of process trial, the counterclaim.
This case does not involve the attorney as a witness case. It may be if the Church’s counterclaim is ever tried, Dandar may not be able to continue as Plaintiffs attorney in that trial. I have put Dandar, thus presumably Plaintiff, on notice that since Dandar would seem to be an essential witness for the Estate in the abuse of process counterclaim trial, he may not be permitted to be Plaintiffs chosen counsel. But that is a question for another day. This court has stayed the counterclaim until the conclusion of the wrongful death trial. That eventual decision should not impact the wrongful death case.
It is doubtful that the Church has standing to raise actual impropriety, or even the appearance of impropriety in some of its allegations in the Omnibus Motion. Imagine if trial courts had to deal with disqualification of counsel every time an opponent learned that an adversary may have put cost money from a case into the wrong account, or improperly co-mingled those same funds. Reported disciplinary cases are replete with these sorts of cases---Florida Bar matters. There is no disqualification of counsel case that I have uncovered that deals with this issue. The reason for this is obvious. There can be no prejudice to an opponent, and thus no thought that the trial court should have to hold mini disciplinary trials in the form of disqualification motions. These matters should be left exclusively to the Bar. This is especially true unless a party could somehow show an unfair advantage, an unlevel playing field, has been obtained by the opposing party as a result of the lawyer’s actions. This could not be shown here. No matter what the outcome of Judge Baird’s decision regarding this issue in his Motion to Disqualify Mr. Dandar, or Judge Greer’s, if he should have to resolve this same issue in his case, both cases where this issue may have some relevance to his case, it has none in mine. No “unfair advantage” can possibly be claimed due to this allegation in the wrongful death case. Since I did not allow a complete hearing on this alleged Code violation, due to the holdings of the Second District Court of Appeal, I will not address this issue further in this Order.
Whether an attorney has disclosed monies he has received from a supporter in a case to his employees, or to the opposition, cannot afford disqualification relief because the opposition is not supposed to learn how much money the attorney has to take a case to trial. That is none of the opposition’s business, as the Second District has pointed out in this and the breach case three times. How could the Church even have standing to address this? In the disqualification case that was presented by the Church, this court has ruled that Minton, not Dandar, lied about the money. How unseemly it would be for Ken Dandar to be disqualified based on the prejurous testimony of Robert Minton. Think of the “public suspicion” if that occurred. What would the public think of the “fair administration of justice”, if Minton' s perjury caused Dandar’s disqualification?
What about whether or not there was an “agreement” to give the bulk of the proceeds from any recovery to a Lisa McPherson Foundation? If there had been, there would be absolutely nothing wrong with this! Ms. Liebreich, as PR, or these beneficiaries of the Estate are still free to do anything they might want to do with proceeds, if any, they receive from this case. Defendants are not permitted to tell juries what a Plaintiff might have in mind to do with the proceeds a jury might award. Neither can a Plaintiff interject this into a trial. In fact, the Plaintiff in this case might wish to tell the jury what the beneficiaries have in mind for any proceeds, if they still wish to set up a Lisa McPherson Foundation to help victims of cults if the jury awards the Estate substantial damages. Is the Church going to stand for this? I doubt it! I would require the Plaintiff to show me some case law that says this is relevant before I would permit them to do so. What possible unlevel playing field in the wrongful death case could the Defendants suffer because of this possible interest by the beneficiaries or the PR? Even if there had been an “agreement”, which I have ruled there was not, I can’t imagine this would be an issue in the wrongful death case. Imagine the public's perception of the “fair administration of justice” if I disqualified Dandar because of an agreement that never was!
As to the discovery violations, these are Minton and Brooks, and Merrett’s. The Church cannot move to disqualify the Plaintiffs lawyer in the wrongful death case, because another lawyer or his clients who are non parties to the wrongful death case, caused them problems in pursuing their discovery of their counterclaim, the discovery of which is mostly, if not entirely, irrelevant to the Plaintiffs wrongful death claim.
As to the “control” of Minton, there was none. As to his interference with the wrongful death case, this court has ruled he did not. He pretends he had something to do with David Miscavige being added to the wrongful death case. But in the final analysis, he testifies that he never wanted that to happen. Even if Minton interfered, it would be insufficient to cause Dandar's disqualification. There is no appearance of impropriety that offends the “fair administration of justice.”
I have ruled that the Fifth Amended Complaint and Count 1 is not a sham, even before it was amended by agreement of the parties. Ms. Brooks wanted Miscavige to be added, but she was the Plaintiffs consultant, and admitted at the hearing that while she may have slanted the truth, or even downright lied about certain things she stated in previous affidavits, she never told Dandar there was not a basis for the Fifth Amended Complaint, including her assessment that Miscavige would have been in control of Lisa McPherson’s stay at the Church during her 18 days, and may have ordered her death. Jesse Prince still feels he has a basis to opine that David Miscavige ordered the death of Lisa McPherson. While this court has stated Prince has no underlying facts that will permit him to opine this to a jury if this wrongful death case goes to trial, and thus the complaint was amended to eliminate these allegations, this court did not find the pleading which included these allegations to be a sham.
There is no doubt that Plaintiffs counsel should have grilled his consultants better before he made these allegations, and should have been more astute about Jesse Prince and Stacy Brooks’ bias than he was. I hope he has learned his lesson and does a better job in the future, but the Defendants cannot remove a Plaintiffs counsel every time something is raised in a complaint that can’t be proved, no matter how offensive. If that were the case, I would have to hear a disqualification of counsel motion every time a summary judgment was granted in one count of a multi-count complaint, or every time a motion to strike was granted. Motions to disqualify counsel should be sparingly used. The Church needs to remember this. I have seen far too many cases in which they have been involved where this motion was filed. Mr. Shaw, the Church Corporate Defendant's representative, assured me when he testified at the Omnibus Hearing that this case was an aberration, and that since the Church is in this community, and as any corporation, may be subject to litigation, neither I nor other judges in this Circuit should expect to see a motion such as the Omnibus Motion filed in every case. I trust his assertion is true as the Church will be using the courts in Pinellas County as Plaintiffs and will be sued in the courts in Pinellas County as Defendants. I have enjoyed participating in this case tremendously, and it has been a great learning experience for me personally, but I couldn’t handle a motion to disqualify, or Omnibus Motion for Terminating Sanctions on a regular basis.
Regarding the allegations of perjury/subornation of perjury, I have found that neither the Plaintiff nor the Plaintiffs chosen counsel is guilty of any perjury or subornation of perjury. What about the appearance of impropriety being such that Plaintiffs counsel should be removed? As the Defendants have shown in their attachment to their Supplemental Memorandum Addressing the Appearance of Impropriety, I was hard on Plaintiffs counsel when he testified. I expressed disbelief at some of his answers. I was likewise hard on Mr. Minton when he testified. I likewise expressed disbelief at some. of his answers. Allegations of perjury, subornation of perjury, extortion, and blackmail cannot be taken lightly. I was looking for the “smoking gun.” I hoped that one or the other of these men would wither under hard questions from counsel and this court and give me the easy answer to who was lying. Neither did. This court had to decide who was committing perjury before her very eyes. However, this harsh questioning of Plaintiffs counsel, who testified for days, should not cause Plaintiffs chosen counsel to be removed. What if I had taken the way of many jurists and sat through the hearing, saying nothing, simply allowing the lawyers to handle the motion? I am an activist judge in motions that require resolution by me alone. I will most likely continue to be. If any lawyer is ever called again to testify in front of me and I ask searching questions, or show incredulity in some of his or her answers, I don’t expect that to cause a motion to disqualify that attorney. If that happens, I will have to rethink my activism. (Counsel should take some measure of relief to know that I do not take an active role when a jury is involved, except as to legal matters, and the control of my courtroom.)
Mr. Dandar’s acceptance of what I consider to be large sums of money from “friends”, “people”, “anonymous source”, “Fat Man,” “Fred,” or any other person from “Europe” without searing, searching questioning in the future will not be tolerated by me. I will assume he really knew the source of the money and chose to close his eyes to it if it ever happens in the future, and he has not asked the searching questions I think he should ask. But because of the unusual nature of this case and the alleged “fear” people had regarding the Church and donating to the Lisa McPherson case or Lisa McPherson Trust cause, I can understand and excuse his na´ve belief of Minton's lies when he told him the unusual source of the money, just like I can understand and excuse Stacy Brooks, Minton’s lover, and John Merrett, Minton’s attorney, for believing him when he told them similar lies regarding sources of large sums of money. But, as to disqualification of Dandar, can I allow Minton’s lies to cause Ms. Liebreich to lose her chosen counsel for the wrongful death case? I think not.
“The purpose of an evidentiary hearing is not to determine whether there has been a breach of the Code of Professional Responsibility for which the attorney may be disciplined but to determine whether, because of such breach, one party has an unfair advantage over the other which can only be eliminated by removing the attorney. Dawson v. Brown, 491 So. 2d 1275, 1276 (Fla. 2d DCA 1986). We have now conducted a 35-day evidentiary hearing. First, I find that no breach of the Code has been proved. Second, if there had been, no “unfair advantage” was obtained by the Estate over the Church that would require the removal of Dandar, Plaintiffs chosen counsel.
Although I do not find an appearance of impropriety in this case, I remind the parties of the balancing test that I would have had to employ If I had found an appearance of impropriety: “[I]n every case where a specifically identifiable appearance of impropriety exists the court must weigh the likelihood of public suspicion against the social interests in obtaining counsel of one’s choice. Moreover, disqualification of a party’s chosen counsel is a harsh sanction and an extraordinary remedy which should be resorted to sparingly.” Lee v. Gadasa Corporation, 714 So. 2d 610, 612 (Fla. 1St DCA 1998), internal cites and quotes omitted. Emphasis mine.
If I had found an appearance of impropriety, which I have not because the facts don’t warrant a finding of the appearance of impropriety under the unique circumstances of this case, I would have had to find two things: (1) the Plaintiff got an unfair advantage, an unlevel playing field, over the Defendant and (2) the public suspicion outweighs the societal interest of one having his or her chosen counsel beside them at counsel table. I find neither. In fact, were I to remove Mr. Dandar as Plaintiffs counsel, I believe that would cause public suspicion in this case, a high profile case one week from being tried, that has been continued far too many times already. I am confident the “fair administration of justice” requires that Mr. Dandar remain as Plaintiffs chosen counsel.
The fact that all of the matters raised in the Defendant's Omnibus Motion and many other supplemental pleadings filed by Defendants have not been addressed in this written Order is not to be taken as this court’s not having determined all of the issues raised by the Church. I simply chose the ones that I wished to address in this written Order. I have now determined all of the issues raised in the Defendants’ Omnibus Motion for Terminating Sanctions and Other Relief, Defendants’ Memorandum of Facts and Law in Support of Omnibus Motion for Terminating Sanctions and Other Relief, all supplemental pleadings and briefs filed both before and since the Omnibus Hearing began, and all of the matters that were raised in the hearing itself and in Plaintiffs and Defendants’ Closing Arguments and Reply. The length of this Order, addressing only some of the issues, the length of the written closing arguments, and reply makes it obvious why this court could not address each and every issue raised in her written Order.
For all of the foregoing reasons, it is
ORDERED AND ADJUDGED that the Defendant's Omnibus Motion for Terminating Sanctions, and all of the relief requested therein, including (1) striking of plaintiffs complaint; (2) precluding plaintiff from answering the counterclaim and defaulting plaintiff on the counterclaim; (3) dismissal of plaintiffs claims with prejudice; (4) disqualifying plaintiffs counsel from representing plaintiff on any matter in these proceedings; and (5) awarding sanctions, in an amount to be determined against plaintiff and her counsel is denied. It is further
ORDERED AND ADJUDGED that Plaintiffs suggestion in her closing argument that sanctions should be awarded to her is denied. It is further
ORDERED AND ADJUDGED that no Motion for Reconsideration will be entertained.
DONE AND ORDERED in St. Petersburg, Pinellas this 12th day of January, 2003.
Susan F.Schaeffer, Circuit Judge
All counsel of record for the Plaintiff
All counsel of record for the Defendant
All counsel of record for Robert Minton
Thomas McGowan, Esq., Counsel for Stacy Brooks
Michael Keene, Esq., Special Master
Bernie McCabe, Esq., State Attorney
Susan Bloemendaal, Esq., Florida Bar, Tampa Branch