Bernie McCabe responds to David Miscavige's offer to settle the Lisa McPherson Criminal Case

4 February 1999

(this is a response to this letter )


February 4, 1999

Mr. David Miscavige
Chairman of the Board
Religious Technology Center

c/o Mr. Morris "Sandy" Weinberg, Jr., Esq.
401 E. Jackson Street

Suite 2525
Tampa, FL 33602

State of Florida vs. Church of Scientoloqy

Flag Service Organization, Inc.

Dear Mr. Miscavige:

I have received your letter of January 22, 1999 as well as the memorandum from Williams & Connelly to which your letter refers. While I do not agree with all of your comments concerning our prior discussions, Iwill concentrate on responding to the primary issues raised in your written proposal. You suggest that your intent is "peaceful" and, in deciding to respond in detail, we have taken you at your word. The initial "offer" made to Mr. Crow and Mr. Burgess, however, requested outright dismissal of the charges in exchange for a $500,000 donation to a local emergency medical care trust fund, repayment of investigative costs, enactment of certain corporate policies, and a somewhat ambiguous amount of "restitution" which was intended as some sort of reimbursement to my office rather than payment for the permissible financial losses, if there are any, suffered by the victim or her estate. Your oral proposal made clear that if we failed to accede to the requested dismissal, a "holy war" of litigation would result, lasting years and winnowing our office's human and financial resources.

I rejected this proposal but acceded to your request for a more direct discussion between you and your attorneys and me and my staff. Your offer in this second meeting restated essentially the same proposal with the caveat that only one charge (the second degree felony of abuse of a disabled adult) need be immediately dismissed. You were willing to accept Pre-Trial Intervention on the lesser felony of practicing medicine without a license, which, if successfully completed, would result in dismissal of that charge as well. After reflection, I also rejected that offer, and thoughtfully considered whether I should make a counter proposal. Ultimately, I decided not to do so.

Let me reiterate that I remain willing to entertain any reasonable proposals to resolve the pending criminal charges against the Church of Scientology Flag Service Organization, Inc. However, you have made it apparent that you will not consider any resolution except one that ensures that all charges are ultimately dismissed. Dismissal is not a proposal that we consider reasonable for a number of factors including our view of the seriousness of the underlying conduct. Therefore, until such time as a significantly different offer is on the table, I do not believe additional meetings would serve any purpose. I do not intend to become involved in repeated "bargaining" sessions, or make counteroffers that your inflexible position would mandate that you refuse, unless some area of common ground first appears.

As is apparent, our office disagrees with your assessment of the applicability and effect of the Florida Religious Freedom Restoration Act on the instant charges. We are somewhat surprised that your letter and the letter/memorandum from Williams & Connelly continue to suggest that corporate charges with a maximum of $15,000 in fines are more onerous upon the "Church" as an entity, than imprisonment of high level, long time officials or corporate employees. (The use of quotation marks is not meant as disparagement but to distinguish the collective group of adherents to which you refer from the local corporation with which you claim no legal affiliation).

You have not suggested that the actions of "Flag" employees (which underlie the charges of culpable negligence and the illegal practice of medicine) were mandated by the religious doctrine or practices of Scientology; indeed your letter suggests that the Scientology practices were contravened. Nor have you suggested that completion of the prosecution will in any way impede any adherent's ability to believe what they wish or attend sessions at the Clearwater facilities as they see fit. Rather, you suggest that the embarrassment of other adherents resulting from any conviction or determination of corporate guilt should prohibit prosecution.

If the criminal charges are unjustified, then your talented entourage of lawyers can defend them on the merits. If, however, the charges are legally and factually appropriate, it seems unlikely to us that either the constitution or applicable statutes would bar a verdict against a corporation proven guilty of abuse or criminal negligence. We will, of course, carefully study the issues and case law presented by the Williams & Connelly memorandum to see if it alters our current perception of these issues.

It also appears to us that from the international perspective that you espouse, the "Church" and its members already have a significant history of being publicly associated with the criminal activity of "Church" employees. We are aware of public reports of past criminal convictions of high level U.S. Church members as well as criminal charges involving members employed by Scientology in Canada (1992), Spain (1994), France (1996) and Italy (1997). As you know, the Church of Scientology in Toronto was found guilty of corporate criminal activity. The "Church" has also reportedly been the subject of suits by former members and the subject of negative comments by governmental studies in Germany, Britain, New Zealand, Australia and Greece. We, therefore, do not believe that the negative association between the "Church" as a larger entity and the alleged criminal conduct of its employees can be attributed to our charging decision or that dismissal of valid criminal charges is appropriate to protect the "Church's" current reputation.

Your suggestion that your proposal will give us "much more" than we could ordinarily obtain implies that we should be more concerned with charitable contributions than assigning legal and moral responsibility for what happened to Lisa McPherson. Certainly, some of the conditions contained in your "compliance program" might be worthwhile initiatives. If, as you suggest, they will insure that the situation will not recur, I question why in the three years since Lisa's death they have not already been instituted and instead are offered as a bargaining position only after the filing of criminal charges against the corporation.

Moreover, I do not think it appropriate that our office or the "Church" dictate to a medical facility the appropriate or "allowed" treatment for a Church adherent. This decision should of course be left to the physician and individual patient, if he or she is mentally competent, or the next-of-kin or other legally authorized person if they are not.

Your suggestion that Mr. Crow has some improper personal interest in the case or that he somehow misled you as to the sincerity of our discussions is wholly unwarranted. When you first met with me, it was you who suggested that you were approaching us in confidentiality under the rule governing plea discussions, even though I questioned the applicability of those provisions where there was no offer to plead, but simply a request that the charges be abandoned. Mr. Crow's comments were initially made to insure that the possibility of future discussions would not be publicly asserted as grounds for delaying the arraignment or other court proceedings. If you are suggesting that, but for this conversation, you intended to publicly use your purportedly confidential discussions with our office to support a public relations effort, then I must question your motives in initially requesting the meeting. Neither Mr. Crow nor I have ever suggested that you or your attorneys refrain from making any other public comments about the facts or the charges or taking any other action you felt was necessary to defend yourself against public criticism.

There are also legitimate reasons for my requiring, once you have chosen to involve me directly in the discussions, that plea negotiations be persons who I have designated. In directing Mr.' Crow to communicate to you that I had ultimately decided not to make a counter offer, I did not authorize him to disclose in detail either my thought processes or those of other assistants who may have been privy to the decision.

Subsequent to a scheduled morning meeting with Judge Peters and Mr. Crow and after additional discussions with Mr. Crow, Mr. Fugate bypassed Mr. Crow and called a subordinate lawyer in an apparent attempt to glean further information. While I would not expect you to necessarily appreciate the significance of this, I believe Mr. Fugate certainly would have. In any event, I trust that Mr. Crow's last directive has made my wishes clear as to how any future plea discussions should be initiated.

Finally, your letter suggests, as your attorneys have threatened in previous correspondence, that you intend to assert what you believe to be the City of Clearwater's history of abusive actions against the Church as a defense to the criminal charges. This seems totally at odds with your repeated statements to us that pursuing the charges against the corporation will undo the good will currently existing between the Church and the City and that you were confident that City officials would welcome the resolution you propose. You also acknowledge "past mistakes" on the part of the "Church", an admission which at least suggests that the "attitudes" in question may have been partially engendered by the "Church's" own past errors or misconduct.

As my assistants informed your lawyers before the filing of charges, we remain willing to review any written submission and documents you care to make concerning the alleged animosity between the "Church" and Clearwater. At this time, we do not believe that such assertions are relevant to a prosecution based primarily on forensic evidence and the sworn testimony of corporation employees and "Church" members. I resent and reject the suggestion implicit in your letter and the letter from Williams & Connelly that this office is pursuing the instant charges for improper or illegal motives.

Once Judge Schaeffer has completed the Lyons trial, we will attempt to set the corporation's pending Motion for Statement of Particulars for hearing. In the interim, if you feel after receiving this response that there is sufficient common ground for plea discussions, then either I or my senior staff will be accessible to, you.


Bernie McCabe
State Attorney

copy from LMT Int

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