Scientology FLAG's Motion to Change Venue for Trial based on Community Prejudice and Supporting Memorandum

May 2003


CASE NO.: 00-002750-CI-20




DELL LIEBREICH, individually and as
Personal Representative of the Estate of
Lisa McPherson; DANDAR & DANDAR,




Plaintiff, Church of Scientology Flag Service Organization, Inc. (Flag), by its undersigned counsel, pursuant to Florida Statutes, § 47.101 (2002), moves the court for a change of venue to Palm Beach or Broward County, but in no event to any county within the circulation of the St. Petersburg Times or within the broadcasting reach of television stations WFLA-8 (NBC), WTVT-.13 (Fox), WTSP-10 (CBS) or WFTS-28 (ABC). The grounds for this motion are set forth in the following memorandum.


Preliminary Statement

Flag has learned that the breadth and intensity of “community prejudice” against both the Scientology religion and Flag within Pinellas County is such that Flag cannot receive a fair trial in this venue. The community prejudice has been fueled by an ongoing barrage of negative media comments, principally by the St. Petersburg Times and the local television stations, including publication of inflammatory and unethical public statements by Kennan Dandar. Flag thus moves for a change of venue to Palm Beach or Broward County but, in no event, to any county within the circulation of the St. Petersburg Times or the broadcasting reach of television stations WFLA-8 (NBC), WTVT-13 (Fox), WTSP-1O (CBS) or WFTS-28 (ABC).[1]

The Procedural Issue

A party may move to change venue based upon “community prejudice” under either § 47.101 or § 47.121. Under the former, there is a filing time limit of ten days from when the action is at issue unless good cause is shown for a later filing. The latter contains no time limit and, indeed, appears from the statute and the case law to contemplate the filing of the motion during the actual jury selection process. See, e.g., Thornton v. DeBerry By and Through DeBerry, 548 So.2d 1177 (4th DCA 1989).

Accordingly, Flag here moves solely under § 47.101, reserving its right to move later under § 47.121, if necessary. While this motion is not made within the 10-day period, nor could it have been, there is overwhelming “good cause” for this Court to hear and determine Flag's motion now, including:

1) Flag just recently discovered, serendipitously, via survey research directed to the wrongful death case and described infra, the extent of present community prejudice;

2) There is no prejudice to defendants by the timing of this motion and, indeed, they ought to be estopped to raise the limitation of time or to claim prejudice given their culpability in fueling community prejudice; and

3) The enormous waste to the public and the judicial system in time and money were Flag limited to seeking a § 47.121 change of venue during jury selection that itself will require an enormous venire, is itself good cause to decide the substantive issue now.

There are no cases defining the parameters of the “good cause” provision of § 47.101, but there is overwhelming authority in analogous situations that the fundamental due process and jury trial rights of a party under both the United States and Florida Constitutions require that time and other procedural limits yield to the protection of those rights.[2] For example, it is well-settled that while an appellate court will not consider a point of error on appeal that was not timely raised below or properly preserved for appellate review, (e.g., the lack of timely objection to counsel's improper statements to a jury), that rule must yield where:

. . . the prejudicial conduct in its collective import is so extensive that its influence pervades the trIal, gravely impairing a calm and dispassionate consideration of the evidence and the merits by the jury . . .

Tyus v. Apalachicola Northern Railroad Company, 130 So.2d 580, 587 (Fla. 1961).

Similarly, while Judicial Administration Rule 2.160 provides for a 10-day time limit on the filing of a motion to disqualify a judge, the law is well-settled that where the judge's alleged bias is inimical to public policy or the prejudice manifest, the time limit must be ignored. See, Pistorino v. Ferguson, 386 So.2d 65, 66-67 (Fla. 3rd DCA 1980); Klapper-Barrett v. Nurell, 742 So.2d 851, 852-53 (Fla. 5th DCA 1999). Here, the degree of community ill-will and villification shown below is of such a level as similarly to go beyond mere venue questions and to so implicate fundamental due process rights that procedural time limits must yield.

Good cause for this Court to consider the issue now clearly exists as well in the practical sense in that were Flag relegated to making a § 47.121 motion during jury selection, the Court would first have to endure the enormous burden in time and expense of a selection process which will almost certainly end with the same result — a change of venue — given the overwhelming evidence of community prejudice shown here. In fact, recognizing the difficulty, in seating a fair and impartial jury in the wrongful death case, Judge Schaeffer advised the parties on January 7, 2003, that she had directed the clerk to summon 1,700 persons for the venire. (Ex. 3, January 7, 2003 Tr., p. 38.) [3] To incur that burden in time and expense in this case in the face of the now evident certainty that a proper jury cannot be seated here, is itself good cause to avoid that wasteful endeavor and to determine the issue now.

1. The McPherson Case

By 1997, when Kennan Dandar filed the wrongful death action alleging that Flag was culpable for the December, 1995, death of Ms. McPherson, decades-old community prejudice had subsided markedly from its earlier levels.[4] By 1997, both the Scientology religion and Flag had greatly expanded their presence in this county and, through their involvement in a host of community outreach and good corporate citizen activities, one would have thought that the days of media hate-mongering and public animus had perhaps gone the way of racial hatred. Indeed, before the McPherson era, the media regularly reported stories laudatory of Flag's community contributions, including awards received for its spirited public service. (Ex. 5.) To the extent the tide had been turning by 1997, however, the McPherson wrongful death case set the clock back.

As of May 5, 2003, the post-1995 pre-trial media coverage of the wrongful death accusations and press statements on other subjects about the Scientology religion and Flag reached overwhelmingly negative epidemic proportions, amounting to a total of 1334 published articles, including 77 editorials and columns and 119 letters to the editor, appearing in the St. Petersburg Times and the Tampa Tribune. (Ex. 6, Affidavit of Ben Shaw.) That massive press assault, which continues today, went well beyond the McPherson case to such disparate subjects as some Scientology parishioners' private purchase of a building in Clearwater and the opening of other Scientology churches in the county.

To fully appreciate the breadth of this media assault, Flag notes that another local high profile case that garnered a significant volume of pre-trial media was the Oba Chandler case. Oba Chandler went on trial in September, 1994. Before trial some 170 published articles appeared on Chandler and the homicide. (Ex. 7, Chandler motion.) The defense filed a change of venue motion based entirely on the prejudicial pre-trial publicity. In that case Judge Susan Schaeffer determined that it would not be possible to impanel a fair and impartial jury in Pinellas County and granted a change of venue. Yet in the Chandler case the pre-trial publicity extended to only 20% of the volume of published material attacking either Scientology or Flag since Lisa McPherson's death. Flag hastens to point out that the present case is not the wrongful death case, but given: the mountain of adverse press almost invariably identifying Flag and McPherson; the presence of the same parties here; and the fact that trial of this case will necessarily require some disclosures to the jury about McPherson's death and the wrongful death case, the poison is just as toxic to the jury pool. And while the particulars of the adverse, inflammatory media statements that relate to the McPherson case may be more pertinent to that case, the spillover pollution of the jury pool here cannot be so ignored.

To appreciate the anti-Scientology message relentlessly trumpeted by the St. Petersburg Times, one need go no further than a sample of headlines from its editorials and columns over the past five years: “Scientology's Bullying” (1/25/97, Ex. 8); “A Quiet Paranoia Settles in Clearwater” (2/23/97, Ex. 9); “Intimidating the IRS” (3/11/97, Ex. 10); “The Hypocrisy of Scientology” (12/2/97, Ex. 11); “The Prosecutor's Duty” (12/9/97, Ex. 12); “Scientology's New Tack” (11/20/98, Ex. 13); “A Cry for Justice” (3/3/00, Ex. 14); “Who'll Save the Serfs in the Land of the Lost?” (6/27/00, Ex. 15); and many more in the same vein.

One Times columnist, explaining why “Scientology deserves all the bad PR,” called the McPherson events, as he interpreted them, a “sickening story,” and gratuitously added that the Church “suddenly and inexplicably received an IRS tax exemption a few years back.” (Ex. 16.) By November, 1998, the Times editors were unabashedly claiming to be the voice of a “skeptical public.” (Ex. 13.) Two days later, a column noted that with Thanksgiving and the anniversary of Lisa McPherson's death both imminent, “it may not be that much of a stretch to suggest the turkeys get better treatment than McPherson did at the hands of Scientologists. The turkeys, at least, don?t get tortured.” (Ex. 17.)

As recently as Match, 2003, when it was learned that investors involved in the private purchase of property in downtown Clearwater were Scientologists, the St. Petersburg Times noted “a lingering negative attitude about the Church of Scientology's large downtown presence,” and described “the fears of some who are wary the property will one day end up in the hands of the church.” (Ex. 18.) That “lingering negative attitude” was demonstrated in letters to the editor responding to another Times article; this one about the opening of new Church of Scientology Missions in the Tampa Bay area. Readers railed at the news of Church growth, repeating that it has already “ruined downtown Clearwater,” “is bad for the community,” and is even “causing a detriment to the state budget.” One local resident described the Church as “a cultic, multilevel marketing enterprise” which is “quite able to destroy your ability to reason and thoroughly control all aspects of your life so you?ll be a willing drone in their cause.” (Ex. 19.)

Notably, to the extent the media needed a lightning rod to help it stir up, anew, community hatred of Scientology and of Flag, Kennan Dandar was pleased to oblige. Thus, despite the clear mandate of Rule 4-3.6 of the Florida Rules of Professional Conduct prohibiting an attorney from making any public statements that are likely to affect the jury pool, Dandar regularly gave interviews and held press conferences during which he gave the media sound bites of the most outrageous kind such as:

They are the ones that killed Lisa McPherson. They are the ones that captured her and threw her into the Fort Harrison Hotel against her will.

(Ex. 20, MSNBC “Newsfront,” December 2, 1997.)

They killed Lisa McPherson — she is dead. Her entire death was preventable, they chose to let her die in following the dictates of Scientology.

(Ex. 21, Channel 13 News, November 13, 1998.)

Through an isolation, they were following the exact programs authored by the founder of the Church of Scientology, Mr. Hubbard, and as a result of those programs they killed Lisa McPherson.

(Ex. 22, Channel 28 News, November 13, 1998.)

There was no accident involved here. This was a very standardly prescribed procedure which the Church followed to the letter; and according to Hubbard sometimes people don?t make it, they die, and that's what happened to Lisa.

(Ex. 23, Channel 13 News, November 30, 1998.)

Indeed, Dandar even appeared on a network, nationally televised program — Inside Edition — to proclaim, “The Church of Scientology killed Lisa McPherson.” (Ex. 24.) And in a March 4, 1999, public speech, Dandar said:

I'm here to talk about the murder of Lisa McPherson by a cult known as the Church of Scientology.

(Ex. 25 hereto.) [5]

Counting only those media that reach audiences in Pinellas County, Dandar has appeared 46 times on television making such unethical, incendiary statements, and his statements have been quoted in 65 newspaper articles.

Flag accepts that a price we pay for a free society is freedom of the press even when in the form of the kind of hurtful journalism shown here. But Flag need not accept trial in this polluted environment, nor need it accept the unethical sound bites that Dandar provided to the press.

2. The 2003 Survey

On January 13 and 14, 2003, in connection with some research that Flag commissioned to prepare for the wrongful death trial, 25 randomly selected potential jurors in Pinellas County were asked in a focus group what one word first came to mind when they heard “Scientology”? The responses included:

1) “Cult”

2) “Despicable”

3) “Lost souls and evil”

4) “Mind controlling.”

Thus, a total of 25, or 100% percent of the group, offered a strongly negative, vitriolic response.

On January 28, 2003, Flag's lead trial counsel, Mr. Rosen, appreciating that the size of the focus group and its informal protocol may not be sufficiently accurate to reflect Pinellas County as a whole, commissioned Dr. Robert C. Sorensen to conduct a more extensive scientific survey on the subject, for the wrongful death case. And to insure that Dr. Sorensen's work would not be susceptible to attack by Dandar, Mr. Rosen engaged Dr. Sorensen on a fully blind basis, i.e., without disclosure of Mr. Rosen's client or what results he was looking/hoping for. [6]

Flag hastens to emphasize that these “blind” procedures were not necessary for Dr. Sorensen, given his reputation and integrity, but were undertaken in an exercise of caution to preempt any character assault of the kind Flag has previously experienced from Dandar. Without the “blind” procedures, Dr. Sorensen could be relied upon to conduct his research in a completely impartial manner, just as he has done hundreds of times in the past when engaged on a “non-blind” basis. Although Dr. Sorensen’s c.v. is attached to his accompanying expert report, it is worth emphasizing that he has been engaged in similar research into people's attitudes and opinions for almost fifty years and his doctoral dissertation was “The Role of Public Sentiment and Personal Prejudice in Jury Trials of Criminal Cases,” University of Chicago, 1954. (See separately filed Sorensen affidavit, at Ex. B.)

Even more impressive — and pertinent — to the integrity of the protocols Dr. Sorensen employs, this Court may recall that many years ago survey evidence was uniformly rejected by all of the federal courts and most state courts, including Florida, on the grounds that it was generally hearsay and unreliable. In 1955, Dr. Sorensen, together with his perhaps slightly more famous brother, Theodore C. Sorensen,[7] published an article entitled, “Responding to Objections Against Use of Opinion Survey Findings in the Courts,” The Journal of Marketing, October, 1955, p. 133. That article was one of the principal bases for — and was cited by — the Judicial Conference of the United States when, in 1968, it adopted a rule for all of the federal courts allowing survey results into evidence if certain standards, largely as proposed in the Sorensen article, were followed to ensure trustworthiness, reliability and integrity of the evidence offered. (Ex. 26, Excerpt from the Manual for Complex Litigation (1968 ed.)). Thus, it is in large part because of Dr. Sorensen that properly done surveys are today routinely admitted into evidence in federal and state courts throughout this country, including courts in Florida. See, e.g., Petition of Post-Newsweek Stations, Florida, Inc. , 370 So.2d 764 (Fla. 1979);

Zippo Manufacturing Co. v Rogers Imports, Inc., 216 F.Supp. 670 (SDNY 1963).
Judge Feinberg's decision in Zippo has been frequently cited for its seminal analysis of the considerations surrounding the admissibility of surveys in civil litigation. Judge Feinberg engaged in an extensive discussion of various evidentiary rules in the course of determining that three “consumer studies,” that plaintiff proffered were admissible evidence. At the outset of his discussion, Judge Feinberg notes:

The weight of case authority, the consensus of legal writers, and reasoned policy considerations all indicate that the hearsay rule should not bar the admission of properly conducted public surveys. Although courts were at first reluctant to accept survey evidence or to give it weight, the more recent trend is clearly contrary.

216 F.Supp. at 682. (Footnotes omitted.)

The Zippo court noted that some courts and commentators take the view that surveys are not hearsay at all. But Judge Feinberg concluded that “[r]egardless of whether the surveys in this case could be admitted under the non-hearsay approach, they are admissible because the answers of respondents are expressions of presently existing state of mind, attitude, or belief” [the hearsay exception under Fed. R. Evid. 803(3)]. Id. at 683. He further found that even if the surveys did not fit within this hearsay exception, there nonetheless “must still be a further examination of the need for the statement at trial and the circumstantial guaranty of trustworthiness surrounding the making of the statement. This approach has been used to justify the admissibility of a survey.” Id. (Citations omitted.)

Employing the most common and uniformly judicially approved random sampling protocol, Dr. Sorensen directed a mall intercept survey of persons qualified to serve as jurors in Pinellas County over the period late March to early April, 2003.[8] Flag urges this Court to read the results of that survey, attached to Dr. Sorensen's expert report, and appended to his expert affidavit, in their entirety, including the verbatim responses. The results are astounding in both the breadth, depth and intensity of present community prejudice. The highlights are:

1) 38 (12.7% of the 300 total) survey respondents who had consented to be interviewed then professed no knowledge of the Scientology religion, Flag, or the wrongful death case, some even admitting the truth that they did not want to answer the three primary questions about Scientology (see Exhibit 4 to Sorensen Survey Report attached as Exhibit E to Sorensen affidavit); [9]

2) An unknown number of survey respondents took the time and trouble to go to the office of the head of the entity operating the mall to complain about the Scientology survey (see Sorensen affidavit, 9); [10]

3) Of the 262 survey respondents who admitted to having read or heard about either the Scientology religion, Flag or the wrongful death case (survey questions l0b)c), 11b)c) and 12b)c)), 216 (82.4% of those responding) offered one or more unfavorable, if not vitriolic, comments about Scientology while only 31 (11.8% of those responding) had anything favorable to say about it (Sorensen Survey Report, Part VI, Table 7, line 3, attached as Exhibit E to Sorensen affidavit);

4) Of that 216 number who offered one or more unfavorable comments, 134 (62% of them) said that they believed what they read or heard about the Scientology religion, and/or the Church of Scientology in Clearwater, and/or the lawsuit. Of the minimal number —31 — who offered anything favorable about Scientology, only 15 (48.4%) were as likely to believe what they read or heard about the Scientology religion, and/or the Church of Scientology in Clearwater, and/or the lawsuit (see Sorensen Survey Report, Part VI, Table 7, line 5, Exhibit E to Sorensen affidavit);

5) Remarkably, of the 223 survey respondents who offered unfavorable comments in response to survey questions l0b)c)e), 1 lb)c)e) or 12b)c)e), 65 (29.1%) spontaneously expressed religious bigotry, and referred to the Scientology religion as a “cult” or in similar, religious-based derogatory terms (Sorensen Survey Report, Part V, Exhibit E to Sorensen affidavit).

Further, in what was the low point for fairness and impartiality in this county, all 300 of the survey respondents were asked, in question 13a, the same question posed in the January, 2003, focus group, i.e., what one word comes to mind when you hear Scientology? The results were astounding. Of the 300 survey respondents, excluding the two who provided no answer, only 2 (0.7%) provided any word favorable about Scientology. In contrast, 123 of these respondents (4 1%) provided words of negative connotation. (Sorensen Survey Report, Part VI, Table 6, Ex. E to Sorensen affidavit.)

“Cult,” was the answer offered by 44 respondents (14.6% of those responding), while another 30 respondents (10% of those responding) offered some other religion-related, negative word. (Sorensen Survey Report, p. 22, Ex. E to Sorensen affidavit.) However, that does not tell the full story. A good number of respondents answered the question with the word “science” and when asked in the follow-up probe why they said that, it was obvious that they were either guessing (which they were told by the survey interviewers not to do) or they were reacting to the fact that “science” and “Scientology” share a common root.

As Dr. Sorensen explains (Sorensen Aff, 10), it is not unusual for any survey to present some number of invalid answers like “science,” a phenomenon referred to by lawyers — and some judges — as “the idiot factor.” Thus, Dr. Sorensen recomputed the percentages excluding the “science” answer with the result that:

1) Of the 219 net respondents to Question 13, 123 (56.2%) offered negative answers about Scientology, while only 2 (0.9%) offered a word that was positive. (Sorensen Survey Report, Part VI, Table 6, Ex. E to Sorensen affidavit);

2) Of the 123 respondents who offered a negative word, fully 50 (40.7% of them) offered “cult” (Sorensen Survey Report, Part V, pp. 52-56);

3) Of the 123 respondents who offered a negative word, 30 (24% of them) offered a word other than “cult” but one which expressed similar religious bias (Sorensen Survey Report, pp. 22); and

4) Adding the responses described in paragraph 2 and 3, above, a total of 80 respondents (65% of those offering a negative word) offered an answer that demonstrated religious bias.

But even this data did not begin to tell the full story of the depth and intensity of potential juror animus. To appreciate that, one must look at the survey participants? verbatim replies. For example:

1) In response to the one word association question, one survey participant replied, “Run.” And in response to the probe of why he said that, he explained, “That's what they do when we try to swerve to hit them.” (Respondent # 123, Exhibit 6 to Sorensen Survey Report attached as Exhibit E to Sorensen affidavit).

2) One respondent suggested, “It's dangerous to even have any contact with them as they might control your mind. I think Congress should investigate the IRS for allowing them to be counted as a religion.” (Respondent # 189, Exhibit 6 to Sorensen Survey Report).

3) Another said, “I do not like them.... I see them. They are very visible.” Scientology is a “farce,” a “scam,” “they are not for real. A brainwashing cult.” (Respondent # 110, Exhibit 6 to Sorensen Survey Rep it).

4) “I don?t think it's a religion.” “It stinks.” Scientologists are “crooks”
because “they rip people off.” (Respondent # 253, Exhibit 6 to Sorensen Survey Report).

5) “They have a negative and evil influence on people. It's not religious and is a cult of mind control.” (Respondent # 188, Exhibit 6 to Sorensen Survey Report).

6) “When you join you turn over all your assets and then they try and kill you off.” (Respondent # 258, Exhibit 6 to Sorensen Survey Report).

Thus, we speak here not of merely a dislike, a lack of affinity, but of vicious, almost obsessive hatred.

As set forth in Dr. Sorensen's affidavit (7), based upon the random sampling protocol, the survey results would likely be the same if one were to go beyond the 300 survey respondents to the larger universe of all people in the jury pool. That is
astounding and a damning commentary on the citizens of this county and their willingness to buy into the publishings of the St. Petersburg Times and other media.

3. The 1980 Change of Venue

Twenty-three years ago, the Sixth Judicial Circuit (Bryson, J.), and, on appeal, the Second District Court of Appeal, granted a change of venue for trial on the grounds that the Church of Scientology of California and the Scientology religion were so odious to the inhabitants of Pinellas County that the Church, and even an individual associated with it, could not get a fair trial here. Church of Scientology of California, Inc. v. Cazares, 401 So.2d 810 (2nd DCA 1981).[11] Notably, Scientology and Flag in particular, were, at that time, in their infancy in this county, and the Clearwater Church having been established in only 1976 was, by any standard, a mere wisp of its prominent public presence here today.

The venue motion was supported by affidavits of experts analyzing the publicity in the area, and the data and analyses of a survey conducted among many potential jurors demonstrating the breadth and depth of prejudice against the Scientology religion, Flag and its parishioners. (Ex. 27, Affidavit of Dr. Kenneth Ellis.) The survey revealed pervasive opinions that Scientologists were viewed as money-seeking outsiders that use subtle means of influencing people, are different from others in anti-social ways, and that Scientology is a “cult,” not a religion. (Id., 23-37.) The survey indicated that members of the community responded to survey questions by paraphrasing the very antiScientology themes expressed at that time in the Clearwater Sun, St. Petersburg Times and Tampa Tribune. (Id., 30-46.) The motion's conclusion that it was impossible for Flag or even individual Scientologists to receive a fair trial in the Clearwater area, (id., 57), was also supported by other evidence and affidavits demonstrating community bias.

Certain details of those survey results that supported the 1980 change of venue motion are pertinent here, particularly because they parallel the 2003 investigation into this same subject. That earlier survey (Ex. 27A), the analysis of which appears in the April 30, 1980, expert Affidavit of Dr. Kenneth R. Ellis, was conducted among persons eligible for jury service residing in eight counties (Pinellas, Hillsborough, Hernando, Pasco, Polk, Hardee, Manatee and Sarasota), but with the greatest concentration of respondents from Pinellas County, which, for purposes of the survey, was divided into two: the northern half of the county and the southern half (Ex. 27D.) The 1980 Ellis survey results were remarkably similar to the 2003 Sorensen survey. The key survey results in 1980 were:

1) Out of a total of 113 Pinellas County respondents, only 13 were able to think of anything positive to say about Scientology (Ex. 27F);

2) Out of a total of 113 Pinellas County respondents, 74 were readily able to provide negative comments about Scientology (id.); and

3) Out of the 74 total Pinellas County respondents who offered negative comments about Scientology, the first word on their lips, the most frequently reoccurring negative comment by far, was “cult” or the like, e.g., “not a real religion” (id.).

After eliciting the respondents' overwhelmingly negative opinions of Scientology, the survey posed the question whether Scientology or a Scientologist could get a fair trial in Pinellas County, 49% (102 out of 2l0 respondents) answered “yes,” a response which is belied by their earlier survey answers, evidencing deep-seated animus, but, as discussed infra, indicative of the phenomena of less than full candor by potential jurors.

Based upon this very data and despite the claim by 49% of the respondents that Scientology could get a fair trial here, Dr. Ellis concluded:

Clearly, the quantitative and qualitative levels of anti-Scientology prejudice precludes the possibility of Scientologists receiving a fair trial in the Clearwater area.

One possible solution is to change the venue to a place where anti-Scientology newspaper publicity has not been so prevalent, and where the anti-Scientology sentiments are not predominant among the population.

(Ex. 27, p. 20.) The Pinellas Court agreed and transferred the case despite the 49% positive responses to the “can they get a fair trial” question, obviously cognizant of the legal principle, discussed infra, that a litigant ought not be obliged to ferret out those few who would honestly and impartially sit in judgment with the limited tool of voir dire. [12]

Based upon this evidence, the trial court granted the motion to transfer venue for trial, and the Second DCA agreed that a transfer of venue for trial was necessary. Church of Scientology of California, Inc. v. Cazares, 401 So.2d 810 (2nd DCA 1981).

Much has changed in this county in the past 23 years but, as the Sorensen survey shows, McPherson case publicity has created an environment as hostile to a fair trial as the 1980 Ellis survey demonstrated. (Ex. 28, Affidavit of Ward A. Wilson; Ex. 29, Affidavit of Robert A. Bush.) In 1980, on a showing less compelling than here at bar, Flag was granted a change of venue for trial. A fortiori, that same result must obtain here on the present evidence.

Finally, one may anticipate that Dandar will oppose, arguing that it will be far more costly for defendants to try this case in another county. Flag trusts this Court will reject that argument, particularly when offered by a man who has played a significant role in “murdering” Flag's chances of getting a fair trial in any jury case in this county, whether it be the wrongful death case or this case.


Point 1.

Community Prejudice Here Requires a Change of Venue for Trial

As noted above, both the quantity, intensity and vitriol of negative media coverage of Scientology and Flag is unprecedented. Standing alone, it is sufficient to show community prejudice tainting the entire venire, and to require a change of venue for trial, despite the number of potential jurors who might profess their ability to put the media reports aside and render a fair and impartial verdict:

In some instances, the percentage of prospective jurors professing an extrinsic knowledge of the case or a fixed opinion has been used to determine whether pervasive community prejudice exists.

Rolling v. State, 695 So.2d 278, 285 (Fla. 1997). As Rolling also holds, a trial judge's instructions to ignore pre-trial publicity is not a proper remedy. See also, Irvin v. Dowd, 366 U.S. 717 (1961) (adverse pre-trial publicity can create such community prejudice that jurors? claims of willingness and ability to be impartial should not be believed). Expressing those same views, the Florida Supreme Court in Rolling held:

The test for determining a change of venue is whether the general state of mind of the inhabitants of a community is so infected by knowledge of the incident and accompanying prejudice, bias, and pre-conceived opinions that jurors could not possibly put these matters out of their minds and try the case solely on the evidence presented in the courtroom. Rolling at 284 (quoting McCaskill v. State, 344 So.2d 1276, 1278 (Fla. 1977)). If the venire's media-generated knowledge of either the parties or the issues to be tried in a case is sufficient to warrant a change of venue for trial under Rolling, a fortiori, here the far-more-pervasive, press-inflamed general bigotry obliges the same result.

The problem, however, is not merely pre-trial press reports per se. That is bad enough, but it has been geometrically exacerbated by Dandar's frequent public statements, invariably republished by the media as “news,” that Flag is a “murderer,” and that it kills people. Thus, the notion that a jury hearing this breach of contract-tort case can put all of this out of its mind and in a fair and impartial way, award substantial damages to a “murderer,” is illusory.

Further, while there are several cases in which a change of venue is ordered based solely upon adverse pre-trial publicity respecting the case itself, here one need not rely only on the Rolling principle that from it, community prejudice may be inferred. Instead, Flag has here presented overwhelming empirical evidence — the Sorensen survey — proving beyond debate the breadth, depth and intensity of actual — not inferred or suspected — community prejudice.

Finally, while 11.8% of Dr. Sorensen's survey respondents who acknowledge having heard or read about Scientology, Flag or the lawsuit did not admit to unfavorable opinions, Flag ought not to have its due process rights depend upon its ability to ferret out those people from a venire. Indeed, given the number of survey respondents who disingenuously claimed never to have heard or read anything about Scientology, Flag or the McPherson case, the very notion that these same people should be believed were they to claim to be able to be a fair and impartial juror here is more illusory than real.

Courts of Florida and other jurisdictions have long recognized that jurors are typically unwilling publicly to admit harboring bias, and will even lie to conceal their bias. State v. Carter, 250 Wis.2d 851, 857-858, 641 N.W.2d 517, 520-521 (Wis. Ct. App. 2002) (”While there may be the occasion when a prospective juror explicitly admits to a prejudice, or explicitly admits to an inability to set aside a prejudice, most frequently the prospective juror's subjective bias will only be revealed through his or her demeanor.”); United States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977) (”Bias can be revealed by a juror's express admission of that fact, but, more frequently, jurors are reluctant to admit actual bias...”); US. v. Gonzalez, 214 F.3d 1109-1112 (9th Cir. 2000); Simmons v. Blodgett, 910 F.Supp. 1519, 1528 (W.D. Wash. 1996) (”jurors are usually reluctant to admit to bias or fail to recognize it.”); State v. Tucker, 629 A.2d 1067, 1077-1078 (Conn. 1993).

As noted in a lengthy discussion of the problem of “ferreting out bias,” a District of Columbia court found that a burden of constitutional dimension rests upon the judiciary, particularly because, “People do not readily admit to bias, states of mind that prevent the rendering of a just verdict or opinions which would improperly influence their verdicts.” Lewis v. Voss, 770 A.2d 996, 1004-1005 (D.C. Ct. App. 2001), quoting Malvo v. J.C. Penney Co., Inc., 512 P.2d 575 (Alaska 1973).

Florida courts have recognized that simple voir dire and inquiry of jurors concerning bias is unlikely to reveal juror prejudices, because “[f]ew jurors would resolutely continue to admit that they have a bias after having a prosecutor and a trial judge so cloak them in a duty to try to be fair.” Montozzi v. State, 633 So.2d 563, 565 (Fla. 4th DCA 1994).

Mere reluctance to admit bias is only part of the problem, because some courts have found that jurors conceal their bias in a desire to be appointed to a jury to determine the outcome of a case. United States v. Bishop, 264 F.3d 535, 554 (5th Cir. 2001); Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998). Given the enormous percentage of the venire who are biased, as shown in the Sorensen survey, it is improper to saddle Flag with the task of bobbing in a tainted barrel in a quixotic effort to ferret out the few good apples.

Thus, where, as here, survey information reveals an overarching community bias for or against a party, the normal methods of assuring the empaneling of an unbiased jury cannot guarantee a constitutionally acceptable level of due process and a fair result.

Point 2.

The Venue Issue Ought To Be Decided Now

While most change of venue motions based upon pre-trial publicity or community bias and prejudice appear to arise during jury selection, there appears to be no rule or reason why such a motion must abide the arrival of a 1,700-person venire at the courthouse and the attendant inconvenience and expense. In fact, in Rolling, the Florida Supreme Court at least implied as much. There, the defendant waited until jury selection to move for a change of venue. On appeal, the prosecutor criticized the defendant for waiting too long, and argued that defendant should have moved earlier and since he did not, he was somehow estopped. The Rolling court rejected the argument, holding that the timing of a change of venue motion is a matter of trial strategy and the court will not second-guess it, at least if not beyond the bounds of reasonableness. Moreover, although not specifically addressed in the published opinion, we note that in Flag's 1980 case, the motion to change venue was also made well before jury selection began.

Here, Flag acted promptly upon learning of the research results that support this motion in this case. Indeed, it would have been irresponsible for Flag to wait until 1,700 persons were summoned for the venire and jury selection had begun.

Point 3.

This Case Should Be Transferred to Palm Beach or Broward County for Trial

Upon a showing, as overwhelmingly made here, that a change of venue for trial is required, the only question left is to what county. No Florida statute addresses any procedure for the determination of the appropriate county to which a civil action should be transferred. However, Fla. Stat. § 910.03 (2002), that applies to criminal actions, requires that upon determining the need to change venue to protect a defendant's due process rights, a court shall give priority to any county that closely resembles the demographic composition of the county from which the action was transferred. To this, we would add that given the extent of the unprecedented media coverage, including Dandar's unfortunate — and unethical — public statements, all counties within the reach of circulation of the St. Petersburg Times and all those within the broadcast range of local television stations [WFLA-8 (NBC), WTVT-13 (Fox), WTSP-10 (CBS) or WFTS-28 (ABC)], be excluded from consideration. That leaves Palm Beach and Broward Counties as the two that best satisfy the comparable demographics test. As between those two, Flag would prefer the one with the least congested docket, the county in which this case can proceed to trial the quickest. From the data presently available, it appears that would be Broward County, but Flag would accept transfer to either county.


Based upon all of the foregoing and the overwhelming evidentiary showing made, Flag respectfully requests that the Court grant its motion to change the trial venue and to determine that this action is to be tried in either Palm Beach or Broward County.

I HEREBY CERTIFY that a true copy of hereof and the Affidavit of Dr. Robert C. Sorensen in support thereof has been furnished BY HAND DELIVERY to Thomas John Dandar, Esq., Dandar & Dandar, P.A., 1715 N. Westshore Blvd., Suite 750, Tampa, FL 33607; and Luke Lirot, Esq., 112 East Street, Suite B, Tampa, FL 33602, this ____ day of May, 2003.

Respectfully submitted,

By: ____________________________
F. Wallace Pope, Jr.
Post Office Box 1368
Clearwater, Florida 33757
Telephone: (727) 461-1818
Telecopier: (727) 441-8617


Samuel D. Rosen
75 East 55th Street
12th Floor
New York, New York 10022
Telephone: (917) 974-7588

Attorneys for Plaintiff Church of Scientology Flag Service Organization

[1] The St. Petersburg Times has an average daily readership of 786,600 (989,500 on Sundays) extending throughout Pinellas, Pasco, Hillsborough, Manatee, Hemando, and Citrus Counties. (Ex. 1, St. Petersburg Times 2003 State Rates.) The Tampa Bay area is Florida's largest television market and the l4th largest in the country. Television stations in the region, the largest of which is WFLA, reach a population of 3,744,000 in 1,568,180 households in ten counties: Citrus, Hemando, Pasco, Pinellas, Hillsborough, Polk, Manatee, Hardee, Sarasota and Highlands. (Ex. 2, WFLA market profile.)

[2] The fundamental issue underlying this motion is the constitutional guarantee of a fair trial.

[3] To the knowledge of Flag's counsel, no case, and certainly no civil case, anywhere in this county has had a jury call of 1,700 people. Indeed, in the highest profile case tried in this State in many years — People v. William Kennedy Smith, a major felony case, it was reported in the press that the venire call was for 100 people. (Ex. 4, U.P.I. newswire, November 29, 1991.)

[4] See infra, beginning p. 18 for discussion of the earlier prejudicial atmosphere.

[5] When, in 2002, Dandar was forced by Judge Schaeffer to amend his complaint so as to delete all claims of “murder,” the media coverage was, predictably, non-existent. The quiet death of Dandar's incendiary charges did nothing to abate the renewed community hatred that his original charges, as widely reported by the media, ignited.

[6] As set forth in the separately bound and filed Affidavit of Dr. Robert C. Sorensen in support of this motion and memorandum (“Sorensen affidavit”) at 3, it was not until he had completed his survey and assembled all of the responses that Rosen disclosed to him that Flag was his client.

[7] Those of the senior generation remember Ted Sorensen as a highly visible member of President Kennedy's inner circle of advisors, serving as Special Counsel to the President, and author of President Kennedy's inaugural address.

[8] Because this research was for the wrongful death case, survey respondents were limited to those living in the southern half of the county from which St. Petersburg juries are drawn. However, as Dr. Sorensen's expert affidavit recites (at 6), there is no basis to believe that the anti-Scientology sentiment disclosed among those respondents would be any different in the northern half of the county.

[9] As Dr. Sorensen states in his affidavit (at 8), rarely in his experience has he seen anything like this in such magnitude.

[10] Ibid.

[11] “Until 1981, the Flag Service Organization (“Flag”) was a division of the Church of Scientology of California, Inc. In December 1981, Flag was separately incorporated as the Church of Scientology Flag Service Organization, Inc. (Ex. 6, Shaw Affi., 3). For convenience, “Flag” is used herein to denote the plaintiff and its predecessor.

[12] When it comes to issues like racial or religious bigotry, it is politically correct to deny having such animus and to claim an ability to be a fair and impartial juror when in fact, that may be anything but truthful.

(Thanks to Tikk for html-zing the body of this motion - links to exhibits were made by Mike Gormez)

On 9 June 2003, Scientology withdrew this motion for change of venue

To Life and Death of Lisa McPherson