Information that
Scientology does not want you to read
The American Lawyer, December 1980
SCIENTOLOGY'S WAR AGAINST JUDGES
BY JAMES B. STEWART, JR.
On September 5, 1980, as U.S. District Court Judge Charles Richey was
recuperating from two pulmonary embolisms and exhaustion, lawyers for the
Church of Scientology and the Justice Department gathered before Judge Aubrey
Robinson, Richey's successor in the two-year-old conspiracy case against 11
members of the Church of Scientology. Judge Richey had already convicted and
sentenced nine of the original 11 defendants, but the remaining two, recently
extradited from England, were about to go on trial. "Particularly from the
standpoint of your Honor's feelings about these defendants who are members of
the Church of Scientology..." began John Shorter, Jr., a lawyer for one of the
defendants. He was interrupted by Judge Robinson. "You want to raise a motion
to recuse?" the judge asked. He knew what Shorter's remark foreshadowed,
having witnessed the Scientologists campaign to drive Judge Richey off the
case. "Is this a fishing expedition?"
Robinson is the fourth D.C. district court judge to preside over the
Scientology case and the latest target of the Scientologists' self-proclaimed
"attack" litigation strategy. Their strategy amounts to an all-out war
against the D.C. district court judges, a war much more sophisticated, better
financed and more successful than the bizarre tactics used by some other
groups against their courtroom adversaries, such as Synanon's attempt to
murder an opposing counsel by putting a rattlesnake in his mailbox.
Unlike Synanon, the Church of Scientology has long sought to distinguish
itself as a legitimate religion. Founded in 1954 by L. Ron Hubbard, a Science
fiction writer, philosopher and author of the bestselling book Dianetics: The
Modern Science of Mental Health, the church claims five million adherents to
its selfhelp philosophy. The Church of Scientology has called itself the
spiritual heir of Buddhism in the western world, and focuses on what it calls
"pastoral counseling" to increase its members abilities and awareness. But in
the past few years, the church has been accused of brainwashing and harassing
its members, and it has become em- broiled in dozens of lawsuits (see sidebar,
page 32), including the 1978 criminal conspiracy charges against 11 of its
members. Such setbacks have triggered increasingly militant responses, which
focused, in the conspiracy case, on the federal judiciary. The Scientologists
legal strategy has been to force the recusal of Judges lie at the root of the
pending criminal charges against the Scientologists. In 1976. D.C. District
Court Justice George Hart, Jr., casually proposed a deposition of Hubbard in
conjunction with one of many Freedom Of Information Act suits filed by the
church. Hart's remark (no deposition ever proved necessary) caused
Scientology officials to believe that the government knew something
incriminating about Hubbard. As a result the church intensified its efforts
to learn what information the government might possess.
At the same time the church was issuing "Guardian Programme Orders"
(directives to church members telling them to use "standard overt sources" and
"any suitable guise interviews" to monitor the activities of all district
court judges presiding in the FOIA suits. In 1977 that directive was extended
to all 15 active judges in the D.C. federal district court.
Posing in some instances as students and journalists, Scientologists
interviewed the judges, researched their careers and backgrounds, followed
them and prepared dossiers. According to Scientology documents, their goal was
to determine "tone level" and "buttons on" --indicia of personal
vulnerability. in the parlance of Scientology. But the church's operation went
far beyond legal surveillance. Members of the church were caught breaking into
the offices of the IRS and the Justice Department, stealing and copying
documents and eavesdropping. On August 15. 1978. l1 Scientologists were
indicted on charges of electronically intercepting oral IRS communications,
forging government passes, illegally entering government buildings, recruiting
Scientologists to infiltrate the government, stealing records belonging to the
IRS, Justice Department and the U.S. Attorney and conspiring to illegally
obtain documents in the possession of the United States and to obstruct
justice.
The Scientologist defendants hired some well-known defense counsel. Mary Sue
Hubbard, the wife of church leader L. Ron Hubbard and the highest ranking
defendant on trial, retained Leonard Boudin of Rabinowitz, Boudin & Standard
and Michael Hertzberg, a solo practitioner, both activist lawyers now
practicing law in New York City. Two other defendants, Henning Heldt and Duke
Snider, retained Alexandria, Virginia, lawyer Philip Hirschkop, who had been
counsel for the "DC. Nine." antiwar protesters arrested in 1970. In all, 12
lawyers were hired to defend nine defendants (two others had fled to England
where they faced extradition proceedings). Boudin and Hirschkop soon assumed
the leading roles in the defense.
Boudin and Hirschkop won't discuss why they were selected, but their public
identification with radical and unpopular causes was undoubtedly attractive to
church members, This was Boudin's first association with the church, but
Hirschkop had handled a search and seizure matter for the church in 1977.
One lawyer who represents Scientologists and has worked with Boudin and
Hirschkop offers this ideological defense for their taking the case: "It is
a simple case of government overreaching." he says. "The government just can't
tolerate an organization with nonconforming beliefs. The Scientologists stand
up for their rights -- aggressively." Another lawyer who has worked on the
case adds a financial motive for their taking such a case: "These people pay
their bills -- top dollar and on time -which is more than I can say for most
of my unpopular clients. This case will finance a lot of pro bono work."
Hirschkop won't say what he has received in legal fees from the
Scientologists, but the church is a prosperous client In one instance a member
paid the church $30,000 for the required series of counseling sessions.
Whatever their reasons for taking the case, high-minded principles have not
characterized the campaign of the Scientologists' lawyers against the District
of Columbia judges. In August 1978 the cases were assigned to Judge Hart,. the
judge whose comment had originally intensified the intelligence operation and
who, like all of his fellow D.C. district court judges, had been
investigated. He became the first victim of the Scientologists' recusal
strategy.
Boudin filed the first recusal motion in January 1979. His theory was a novel
one: by telling Judge Hart that the judge himself was a target of the
Scientologists' own possibly illegal activities, he would cause the judge to
be biased, or appear to be biased, against them. In his motion, Boudin quoted
a Scientology document ordering an "overt" and "covert" data collection
operation against Judge Hart, which, in Boudin's words, "possibly [included]
the use of methods violative of the judge's privacy and other rights and
possibly violative of the criminal laws." Boudin concluded that "the sitting
judge is revealed to the jury and the public as a victim of possibly illegal
actions," and "the judge has an obvious interest which may be affected by the
outcome of the case." Notwithstanding documents to which government and
defense counsel had access ordering similar operations on all the District of
(Columbia district court judges, Boudin declared that he knew of no other such
campaigns.
Although government lawyers, led by chief prosecutor Raymond Banoun, protested
vigorously, arguing that the Scientologists were using their own possibly
illegal activities to disqualify the judge, Hart granted the recusal motion
and stepped down. Hart denied that he was biased, but he agreed that the
appearance of impartiality had been tainted by the Scientologists'
surveillance operation against him. "I was afraid a jury would be prejudiced
against the defendants because of their alleged threats against me." Hart
said recently. The case was assigned next to Judge Louis Oberdorfer, who in
light of Judge Hart's recent experience asked for memoranda and oral arguments
from both sides at the outset indicating potential grounds for
disqualification. Government lawyers pointed out in their memo that
Oberdorfer was formerly an assistant attorney general in charge of the tax
division of the Justice Department, which had prosecuted a case that ended the
tax- exempt status for the founding Church of Scientology in Los Angeles in
1969. Oberdorfer concluded that he had "personal knowledge of disputed
evidentiary facts," and on February 5. 1979. he too stepped down. Shortly
afterward the case fell to Richey, 57, a 1971 Nixon appointee whose liberal
record -- especially in the area of defendants rights -- surprised early
critics. The assignment initially pleased the Scientology defendants. In a
pamphlet called "The Trial of the Scientology Nine," prepared by the
Scientologists, Judge Richey was described as having "a very fatherly visage .
. though crippled with a congenital defect in his hip, one does not notice
either his limp or his shortness. His glasses glinting from the lights of the
courtroom add to the picture of a man of deep intelligence and sympathy." And
when Richey, too, asked at the outset for a recusal motion if one were
planned, Boudin and Hirschkop said they were satisfied with his assignment to
the case. That attitude was soon belied by a campaign of harassment that took
place in and out of the courtroom.
During the summer of 1979, court sessions were held for about three weeks in
Los Angeles, where Richey scheduled testimony on the Scientologists' motion to
suppress evidence seized by the FBI in its 1977 raids of the church's
headquarters. The thousands of documents seized in those raids constituted the
core of the evidence against the alleged conspirators. The hearings had been
moved to Los Angeles to accommodate the Scientologists' witnesses.
Prior to his departure for Los Angeles, Richey received several death threats.
The judge has never publicly alleged that those threats came from
Scientologists and has said they were unrelated to the case, but he flew to
California escorted by two federal marshals, and elaborate security
precautions were implemented at the federal courthouse in downtown Los
Angeles.
During the hearings, defense lawyers repeatedly interrupted the proceedings
with objections, motions and audible commentary, including insults to the
judge. For example, Hirschkop and other counsel repeatedly and loudly ordered
co-counsel to place adverse evidentiary rulings in a mythical "error bad." On
several occasions, Hirschkop accused Richey of lying. At times, Richey left
the bench and walked out rather than hold defense counsel in contempt. Only
once, at a later hearing, did the judge seem to boil over: speaking to
Hirschkop, Richey said, "I want to tell you right here and now, I resent it
because I have done nothing to hurt you or your clients. And this record is
replete with insults and everything else, when I have not done it to you and
don't intend to." Banoun, the prosecutor, says Richey was too accommodating.
"He should never have tolerated such behavior, " Banoun says.
Hirschkop claims that he was the one who was insulted. "Richey showed
contempt for me," Hirschkop says, recalling the time when, he claims, Richey
tried to "force-feed" him French fries in court. (Banoun says the judge simply
offered all the counsel some French fries he had not finished at lunch.) "I
called Banoun a liar," Hirschkop continues, "and the judge admonished me. But
Banoun could insult me with impunity." Banoun denies that this was true.
Hirschkop concedes that he frequently became "heated" in his dealings with
Judge Richey but says, "I never called him dirty names."
In September 1979, after the Los Angeles hearings, Richey denied the
Scientologists' motion to suppress the evidence seized by the FBI. The
defendants eventually entered into a stipulation of facts, which amounted to
an admission of the principal charges against them, and waived a jury trial.
In return, the government agreed to drop 23 of its 24 criminal counts.
Judge Richey explicitly warned the Scientologists that the stipulation was
likely to result in their conviction: he subsequently conducted his own
review of the evidence, which he said was "overwhelming evidence of guilt,"
and on October 26, he convicted all nine. On December 6, two days before they
were to be sentenced, a recusal motion against Richey was filed.
In this recusal motion, Boudin and Hirschkop again took the extraordinary
position that Richey's response to their courtroom tactics and to the threats
showed that Richey was prejudiced against Scientologists. For example,
without saying that the death threats were made by Scientologists, Hirschkop
said that "upon information and belief, the security in Los Angeles was
related to the court's apprehension with regard to the defendants in this case
or their church," adding that "it is impossible to imagine a stronger --or
more clearly 'extra-judicial' --source of bias than fear for one's life or
wellbeing."
Whatever its merits, the recusal motion was patently defective in at least two
technical respects. The judicial recusal statute requires a "timely" motion
supported by an affidavit signed by a "party." This motion was filed four
months after the events complained of-- and after nearly 120 defense motions
had been resolved against the Scientologists --and was supported by
Hirschkop's affidavit, not one of the defendants. ("I should have filed it
much sooner," Hirschkop concedes. "Richey was grossly prejudiced from the
start.") In response to the motion, Judge Richey defended his security
precautions, noting that "the court may accept reasonable security precautions
without risk of tainting its rulings in the case." He denied the motion and
that same day sentenced the nine defendants to prison terms of from six months
to four to five years. Eight pulled out checks for $10,000 the day of their
sentencing, and all nine are now free on bail pending appeal.
The denial of their first recusal motion and the sentences, which the
Scientologists regarded as unconscionably harsh, led to a redoubling of
defense efforts to drive Richey from the case. Six months later, in June
1980, defense counsel were ready with another recusal motion, more damaging
and threatening to Judge Richey than the first. The groundwork for that
motion had been laid nearly a year before, shortly after the Los Angeles
hearings.
That summer, Thomas Dourian, Judge Richey's official court reporter who
accompanied him to Los Angeles, was approached by Hirschkop soon after their
return to Washington. In a sworn affidavit filed in response to the second
recusal motion, Dourian says Hirschkop wanted to know if the security
precautions in Los Angeles resulted from Richey's fear of Scientologists. In
the affidavit Dourian swore he denied that the judge was afraid but confirmed
that before leaving Washington, the judge and his wife and two sons had
received two death threats.
Soon after this encounter, in December 1979, a Scientology lawyer hired
Richard Bast, a private detective who had worked for Hirschkop several years
before, to investigate Judge Richey's security precautions. Bast's fee:
$321,000 plus expenses. One of Bast's first steps was to infiltrate Richey's
inner circle at the courthouse. In the spring of 1980, a few months after the
Scientologists' sentencing, Fred Cain, a Bast employee and retired police
officer, approached James Perry, one of two U.S. marshals who had accompanied
Richey to Los Angeles. Cain explained to Perry that he had been retained by a
European industrialist whose daughter had committed suicide, allegedly as a
result of her involvement with the Church of Scientology, and that his
assignment was to uncover information that could be damaging to the church.
According to Bast, Perry told Cain that he wanted to write a book on the
Scientology case, and Bast offered him a $2,000 advance. Bast says that Perry
took the money, and they agreed to work together.
The evening of May 23, Perry and Cain met Dourian, the court reporter, at his
home in Washington. According to Dourian's affidavit, Cain introduced himself
as a private investigator for International Investigations, Inc., Bast's
detective agency, and told him the same story about the European
industrialist.
Dourian says in his affidavit that he found the story improbable but that
because his home had been burglarized and he had received threatening phone
calls, which he suspected came from Scientologists, he was curious about what
Cain and Perry were doing. According to the affidavit, Dourian met with Cain
three more times, and each time he was questioned about Judge Richey. At a
meeting at his home on May 31, 1980, Dourian says he realized that the
conversation was being recorded. Cain had been drinking heavily, Dourian
says, and as a result, the court reporter was able to slip a small tape
recorder and three cassettes out of Cain's pocket. Dourian's last meeting with
Cain was on June 19, when they met with Bast and then dined at a nearby Pizza
Hut. Again, Dourian was asked about Richey, and the conversation was
recorded.
The recordings of Dourian, along with tape-recorded statements made by
Hirschkop -- all collected by Bast -- formed the basis for the next recusal
motion against Judge Richey. The motion, largely incorporating an earlier
recusal motion filed by Hirschkop, was filed on June 20, 1980, as proceedings
were beginning against the two defendants recently extradited from Great
Britain. For some of the Scientologists' counsel, however, the recusal
strategy had gone too far. There was apparently opposition within the ranks
to these motions and the way they were prepared. One lawyer, Michael
Nussbaum, who represented two of the defendants, didn't sign the papers and
withdrew as trial counsel.
The affidavit in support of this motion was filed by Morris Budlong, one of
the extradited defendants, after he listened to various tapes and spoke to
Hirschkop. Among the prejudicial remarks that Budlong attributed to Judge
Richey were: that Richey's death threats emanated from Scientologists; that
Jim Jones and Scientologists were "all the same"; that it would be a "feather
in his hat" to convict the Scientologists; and that Richey had told another
judge that Scientologists were spreading rumors about him as part of a "plot"
to discredit him. A cryptic footnote to the affidavit declined to provide
details of the alleged rumors about Richey, citing "respect for the court as
an institution." But Hirschkop and other defense counsel knew the details of
the plot Richey alluded to. They had gotten them from Bast, who says he had
combed the Los Angeles area for information about Judge Richey's personal
habits, interviewing motel and restaurant employees and making videotapes and
recordings. The information not revealed in the motion was taken by Bast to
political columnist Jack Anderson. The central figure in bast's story was a
self-professed Los Angeles prostitute who worked the Brentwood Holiday Inn,
the motel where Richey stayed during the Los Angeles hearings. In a video
recording shown to Gary Cohn, a reporter for Anderson, the prostitute recalled
"in titillating detail," according to Cohn, an encounter with Judge Richey at
the motel and his procurement of her services. According to Cohn, Bast also
showed results of lie detector tests conducted by Cain to demonstrate that the
prostitute was telling the truth; a tape recording of Perry, the U.S. marshal,
claiming Judge Richey said, "Let's go get a woman"; and a tape recording of
Dourian, the court reporter, saying Richey "was always picking up girls."
Cohn says that he was initially skeptical of the story because he was aware
that Bast was employed by the Scientologists. But he says he had often worked
with Bast and trusted him. He says he considered but rejected the possibility
that the prostitute was herself a Scientologist, planted to entrap the Judge.
Bast says only that his discovery of the prostitute was "accidental," that he
paid her $1,200, that she is not a Scientologist and that she is no longer
streetwalking.
Cohn wrote the column, which later appeared under Anderson's by-line, focusing
on Bast's investigation and Richey's procurement of a prostitute. Cohn adds
that he is now "not happy" with the way the column was written. In his
affidavit, Dourian, the court reporter, who has heard the tapes he stole from
Cain's pocket, denies the remarks attributed to him.
Newspapers that subscribe to Anderson's column received the Judge Richey story
around July 11, a week before its release date of July 18. Some of them
balked at running it -- the New York Daily News decided not to publish it --
and The Washington Post used it only after extensive conversations with Cohn.
Cohn says he never reached Richey for comment, and although Post editor Ben
Bradlee says he is sure "we did call (Richey) about the column," no comment
from Richey appeared in the Post's version, either.
On July 16, Richey issued his opinion. Evidently referring to the upcoming
Anderson column, which Richey might have known about from reporters' calls and
messages, Richey characterized the recusal motion as "this latest effort in
the escalating attack on the court" and found the grounds for the motion to be
"insufficient as a matter of law," resting only on "hearsay, rumor and
gossip."
But, the judge continued, "defendants and their counsel have engaged in
groundless and relentless attacks on this court. Their motive is transparent.
It is an attempt to transform the trial ... into a trial of this judge."
Though he labeled the attempts to remove him a "classic example" of abuse of
the recusal statutes, he wrote that "the time has come for the proceedings in
this case to proceed on the merits with the attention of all directed at the
real issues in this case." As a result, Richey withdrew from the case in a
state of exhaustion and near-collapse, according to associates.
On July 18, Jack Anderson's column appeared in newspapers throughout the
country. Five days later, Judge Richey was hospitalized with exhaustion and
pulmonary embolisms. He has since declined all comment on the case, citing
the code of judicial conduct.
Judge Richey's ordeal may not be over. Hirschkop vows that his campaign
against the judge will continue, and he claims that the prostitute affair is
"only the tip of the iceberg." Although Hirschkop declines to disclose
details, he says if necessary he will expose additional damaging information
uncovered by Bast.
Apart from the delays, the campaign against Judge Richey has had negligible
legal impact on the proceedings against the Scientologist defendants. Though
an appeal is pending on a conventional search and seizure question, the
convictions of the first nine stand. Trials of the remaining two defendants
started in late October under Judge Robinson and are still in progress.
The activities of the Scientologists and their counsel in this case seem
destined only to satisfy a commandment L. Ron Hubbard once wrote:
"The DEFENSE of anything is UNTENABLE. The only way to defend anything is to
ATTACK, and if you ever forget that, then you will lose every battle you are
ever engaged in, whether it is in terms of personal conversation, public
debate, or a court of law. NEVER BE INTERESTED IN CHARGES. DO, yourself,
much MORE CHARGING, and you will WIN."
In its July 1980 issue the American Lawyer named Judge Charles Richey
runner-up to the worst District of Columbia federal district court judge. The
lawyer who most vehemently denounced Richey was one of the Scientologists'
defense counsel, and this same lawyer also referred our reporter to other
lawyers who have represented Church of Scientology defendants. The reporter,
who has since left our staff, says he was unaware of Scientologists' efforts
to discredit and recuse Judge Richey. Without the lawyer's vehemently
derogatory remarks and his referrals to other "sources," our reporter says he
would not have named Richey in the survey.
BATTLES ON OTHER FRONTS
The Church of Scientology has been involved in almost constant litigation
since its founding nearly 30 years ago. Besides periodic clashes with the
government, the church has filed scores of suits against the media to inhibit
the news coverage of its activities.
Among the more recent cases involving the church and the media:
Fourteen libel suits have been filed against Paulette Cooper, New York
freelance writer and author of the 1971 book, The Scandal of Scientology, and
her publisher. Church documents seized in the 1977 Los Angeles raid and made
public last year revealed "Operation Freakout," a campaign of harassment
directed against cooper that included death threats, obscene phone calls,
phony letters about her sexual behavior and a forged bomb threat against the
church that resulted in Cooper's indictment in 1973. The charges against
Cooper were dropped in 1975. Cooper has now retaliated with a $55-million
suit against the church.
A 1977 suit against the San Diego Union asked $10,000 in damages for invasion
of privacy from a reporter who had registered for a Scientology course in
order to write a story about the church. The church offered to drop the suit
if plans to publish the story were dropped, but after the story ran, the
church increased its damage claim to $??,000 and added charges of fraud and
deceit against the paper. The case was dismissed on summary judgment.
In 1976 the church sued the Clearwater Sun in Florida for $1 million and
threatened to sue the St. Petersburg Times for a series of stories on the
church. Scientologists spread rumors linking Times officials to the CIA, the
FBI and the Communist Party, and harassed reporters. The Sun countersued the
church for abuse of process, and the Times sued for an injunction barring the
church's harassment of its reporters. The church subsequently dropped its
suit against the Sun and never followed through on its threat to sue the
Times. In March 1979 the church sued two New York writers, Jim Siegelman and
Flo Conway, after they criticized Scientology on the "David Susskind Show"
while discussing their book, Snapping. After the Scientologists' suit against
them was dismissed, the pair countersued, charging the church with malicious
prosecution.
The church has lately found itself on the defensive in a flurry of suits filed
against it by disgruntled former church members and recruits. Currently
pending against the church are:
a suit filed October 21 by Lawrence Stifler, a Boston marathon runner,
asking 41.25 million for damages sustained after he was allegedly physically
attacked by a Scientology recruiter. Stifler says that due to the injury, he
may never run again;
a $16-million suit filed in April by Tonja Burden, a 20-year-old
former church member who claims she was deceived and forced to remain in the
church, used as slave labor and kidnapped after she escaped;
a $21-million suit brought by jazz guitarist Gabor Szabo in February,
accusing the church of embezzlement, kidnapping and forcing him to undergo a
"life repair course";
a class action filed last December by former church staff member
Lavenda Van Schack, seeking $200 million on behalf of church dropouts. Her
suit accuses the church of mind control, unlawful electronic surveillance and
leaking details of her private life to the media.
Last year, Julie Titchbourne, a former Church of Scientology member, was
awarded 42 million by a Portland, Oregon, jury, which found that the church's
promises of a better life were fraudulent. The church has subsequently sued
four "deprogrammers" for $2 million collectively, claiming that they induced
Titchbourne to turn against the church.
-- J.B.S.