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Biased Journalism Volume 4, Number 5 Monday May 11, 1998 Contents:Read at your own risk. This is Biased Journalism!
Judge Whyte began by laying down some limits for the lawyers. He wants to prevent discussion of, for instance, crimes committed by scientology. What is relevant is whether H. Keith Henson thought that the copyrights were invalid or had expired, or whether in subjective good faith and objective reasonable belief Henson believed NOTS 34 constituted the illegal practice of medicine, and that [we are simplifying what the Judge said] he believed that concern for public safety, or the like, trumped copyright law. [Is the Judge a bridge player?]
Whyte said that Henson cannot discuss the crimes of scientology; this topic is (a) irrelevant and (b) irrelevant except to the extent that Henson had facts that David Mayo owned the copyright.
Graham Berry tried to widen the limits: Your Honor, I think that there is something in the post [of March 30, 1995] that deals with it.
Judge Whyte: irrelevant, except as regards facts that Henson had that showed that David Mayo may have authored NOTS 34 and that the copyright was not valid.
Once again the Judge ruled that Henson's March 30, 1995 post can be shown to the jury. The defense will not be allowed to offer any other exhibits. (The Judge lists three occasions on which the defense--H. Keith Henson pro se at the time--could have offered exhibits but did not.)
Sandy Rosen has a shopping list. He wants the Judge to ask the jury once again whether they have heard or read anything related to the case or scientology over the long weekend. He reminds Whyte of the documents Henson submitted to the court with reference to Henson's financial condition. What does Whyte want to do?
Berry says that Henson forgot to bring the remainder of the documents with him, but can have them there tomorrow (Tuesday). Berry has filed a brief with the court about the subpoena and its (lack of) timeliness. "I've read it," Judge Whyte says, suppressing discussion.
Rosen says he will move to preclude the defense of inability to pay because "there has been no compliance" with the subpoena.
Berry says that he won't bring up the inability to pay issue without alerting Rosen and giving him a chance to respond.
Rosen continues attacking Berry's Offer of Proof. It contains the statement that the murders of Ford Greene and Cynthia Kisser were discussed in Kendrick Moxon's law firm, the same law firm of which Helena Kobrin is a member. But Greene and Kisser are alive and well.
Berry says indignantly that he didn't accuse anyone of anything. Garry Scarff testified to these things. He requests five minutes to confer with his client.
Rosen alludes to a vast body of scientolgy documents released by Graham Berry, filed as the Fishman Affidavit. He mentions Grady Ward, and alludes to others in the audience [who would be happy to publicize confidential materials revealed in this trial].
In fact Grady Ward is seated in the second row, left side. Ward is wearing shorts, a short sleeved shirt and a cherubic smile. He has a small device, perhaps 4 x 6" that contains the entire trial transcripts so far, the federal rules, the local rules, Robert's Rules of Order and other useful references.
Berry says indignantly that Fishman was pro per at the time and wrote the Affidavit himself. Berry's staff merely brought it down to the courthouse. "That's not true!" Helena Kobrin whispers to William Hart in the audience.
Rosen wants to talk about the March 30 posting, which Whyte has already agreed to admit. Rosen wants the commentary deleted.
The issue is refought. "This has become absurd!" Berry exclaims. Whyte eventually rules that the post will be admitted in its entirety.
The awful prospect that NOTS 34 may be read aloud in the courtroom is brought up. A bench conference is held. This time the court reporter brings her apparatus over to the sidebar. The conference is on record.
We survey the courtroom. Nine netizens are present, including Grady Ward with a benevolent smile. Jana Gold of Morrison Foerster has come to observe. Darlene Bright, the chunky blond and Mark of the San Jose org are present. Tom Henson does not put in an appearance. Ken Long, Alan Cartright and three unfriendly looking men in suits represent the RTC contingent in the back row. In the front row are Eric Lieberman, Warren McShane, William Hart, Helena Kobrin, **Biased Journalism**, netizen seekon. Arel Henson has come to support her husband.
RTC wears charcoal gray suits. Alan Cartright is wearing a dark blue suit with a very loud tie featuring white and blue circles. Ms. Kobrin has a red dress with a navy blue jacket. She looks rested but combative. Graham Berry is wearing a spiffy dark blue suit and an attractive floral tie which depicts squirrels in a garden.
William Hart is wearing 1/4" of stubble, no tie and a brown sweater with his dark gray suit. He has brown cowboy boots, well shined.
The RTC faction does not look cheerful today.
The Judge explains that he does not want any matters except matters bearing on the posting of NOTS 34 to be brought out on cross examination. Whyte lays down narrow rules. Berry would like to widen them by offering material related to the misuse of copyright defense. Whyte wants very narrow limits to discussion.
The jury returns. Once again Whyte asks them whether they read or saw anything related to the case or its participants. No one responds.
Henson takes the stand again. Berry takes him through some personal background including his involvement in free speech causes.
Sandy Rosen begins a long series of objections, forcing Berry to fight for every question. Berry keeps his composure and goes right on in a seamlessly smooth progression. Henson does much better, and makes ringing statements about his belief in free speech on the net. Berry establishes that Henson has read many postings dealing with scientology medical practices. Rosen objects, and Judge Whyte insists that the questioning be limited to NOTS 34.
Berry asks Henson to describe the e-meter and auditing, in a series of questions interleaved with objections by Sandy Rosen. Rosen's chair squeaks loudly at critical moments.
Judge Gesell's decision is brought up. Henson briefly describes the decison and the FDA vs. scientology lawsuit that produced it. As part of Gesell's decison, scientology was forbidden to make any medical claims for auditing.
By 3:30 pm. Berry is ready to introduce NOTS 34 and question Henson about it. Judge Whyte clears the courtroom. Netizens go out into the hall for an animated chat. The RTC group bunches up around the far telephone and is largely silent, directing hostile looks at the netizens. Eric Leiberman, Warren McShane and WIlliam Hart remain in the courtroom.
Various things happen during the session outside the courtroom which will appear in our longer article. Notably for the moment, netizen jdiver has maintained a tally of Sandy Rosen's objections. So far there are forty (40). That's twenty per hour, or one every three minutes.
About an hour later the courtroom is reopened. Berry is questioning Henson about Judge Gesell's decision. Henson states that he believed that NOTS 34 was a violation of Gesell's injunction. He believes that NOTS 34 is an example of criminal behavior by the church of scientology.
The jury is paying close attention. They look like people who have had a cognition.
Henson goes on to say that he believes copyright law must yield to public safety concerns. You should not be able to copyright a criminal instruction manual.
The sequence has been frequently interruped by Sandy Rosen. Whyte decrees a short recess. As soon as he turns his back, and while the jury is filing out, Sandy Rosen goes over to Graham Berry and grabs him in a sort of one-armed bear hug, draping one arm around his neck. It is not a friendly gesture. He says to Berry "If you mention the Holocaust one more time I'm going to break your face in."
Then he lets go. Berry is indignant.
After the recess (but before the return of the jury) Berry complains about the incident to Judge Whyte.
Rosen denies he did anything of the kind, and then states that he is Jewish and Berry has made two references to the Holocaust, which he, Rosen, finds intolerable. He says he said to Berry "If you do this again I'm going to be in your face." Berry objects angrily.
Whyte: "I'VE HAD ENOUGH!" He orders them not to speak to each other except on issues before the court, and if they do have to talk, they can do it in his presence.
Then there is a hassle over how much time each party has left. Rosen's figures don't agree with Whyte's. It is a big discrepancy.
Rosen has new jury instructions. He'd like the jury instructed that no one can form a reasonable belief about anything by reading Internet posts, that what happens on the Internet, contrary to Henson's statements (!) cannot supersede copyright law, and several other matters.
Berry objects. Why is the plaintiff being allowed to submit last minute jury instructions when the defense has been forbidden to do so? He has no instructions to offer, having relied upon the even- handedness of the court.
Whyte accepts Rosen's instructions, but says that he may not give them to the jury.
The court clerk has had it with Rosen's squeaking chair. She finds him one that is silent. "He spent hours looking for that (squeaking) chair," a netizen grinned.
At this point RTC has 60 minutes left, and Berry has 45 minutes left. The closing arguments will be limited to 60 minutes, and the judge specifies that the final RTC rebuttal will not take more than 15 minutes.
Proposed changes to the jury instructions will be submitted tonight. Whyte specifies that Graham Berry must receive them at approximately the same time he does.
"We always do that, Your Honor," Sandy Rosen says obsequiously.
And it's over for today. Tomorrow morning at 8 a.m. the trial resumes, in what promises to be a fiery conclusion.
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