IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNT', FLORIDA
STATE OF FLORIDA Case No.CRC98-20377CFANO-S
V.
CHURCH OF SCIENTOLOGY FLAG
SERVICE ORGANIZATION, INC.
SPN: 01980179
RESPONSE _TO DEFENSE MOTION TO DISMISS BASED
UPON THE RELIGIOUS FREEDOM RESTORATION ACT
Comes now, Bernie McCabe, State Attorney for the Sixth Judicial
Circuit of Florida, by and through his undersigned Assistant
State Attorney, and hereby files this his Response to Defense
Motion to Dismiss Based Upon the Religious Freedom Restoration
Act, and as grounds therefore would show:
I. FACTS OF THE OFFENSE.
A. LISA MCPHERSON.
Lisa McPherson was a thirty two year old Texas native who had
been involved in Scientology for many years and who worked for a
Clearwater business owned by other Scientologists. She had been
had been in Clearwater and associated with the Church of
Scientology Flag Service Organization, Inc. (CSFSO) since 1994.
Records indicate that Lisa had spent between 50,000 and 100,000
dollars on self improvement courses and auditing' in the two
years prior to her mental breakdown and death. She had a fear of
insanity; both her father and brother had committed suicide.
Despite 18 years as a Scientologist and expending large sums of
money for "spiritual treatment," McPherson struggled with
psychological problems throughout the last year of her life.
During that year, Lisa had paid $58,000 for Scientology
services, yet had allegedly suffered a partial "psychotic break"
during the summer. Her account was debited over $20,000 for
auditing services during July and
' Auditing is a Scientology procedure that is discussed at
page 40 herein.
August of 1995 alone. The defendant, nonetheless, confirmed at
her September of 1995 "graduation" that she had reached the
advanced state of "Clear." Clear is defined by Scientology
doctrine as being that:
"highly desirable state for the individual, achieved through
auditing, which was never attainable belotFe Dianetics. A Clear
is a person who no longer has his own reactive mind and therefore
suffers none of the ill effects that the reactive mind can
cause. The Clear has no engrams which, when restimulated, throw
out the correctness of his computations by entering hidden and
false data."Z
At the time of her death, Ms. McPherson's checking account
balance was $140 and she had approximately $11 remaining in her
savings account.
B. SCIENTOLOGY AS A RELIGION AND CSFSO AS A CHURCH.
The State acknowledges that although it originated as the secular
activity of Dianetics, Scientology philosophy contains precepts
such as reincarnation and the immortality of the spirit that are
both metaphysical and religious in nature. Based upon this and
other attributes of Scientology, Courts have found believers in
Scientology to qualify for religious protection under the First
Amendment. The State does not concede, however, that every
precept or assertion in the vast library of works created by the
prolific L. Ron Hubbard, Scientology's founder, to be religious
tenets, beliefs or practices within constitutional or statutory
protections.
Moreover, despite the inclusion of the word "church" in its
corporate name, the State does not concede that the corporate
defendant is coextensive with being the "Church of Scientology."
The term "church' usually denotes the physical structure where
religious worship occurs and has also come to refer to the body
of believers' It is clear that CSFSO equates with neither.
Z See, What is Scientology (attached as exhibit A to
defendant's Affidavit by Richard Reiss) at page 1019.
' See, First Independent Missionary Baptist Church of
Chosen v. McMillan, 153 So.2d 337 (Fla. 2d DCA 1963).
2
A multifaceted non-profit corporation owning numerous buildings
in the Clearwater area including a hotel, restaurant and
numerous housing facilities, the defendant engages in extensive
revenue generating activity by providing self-improvement
services for clients or adherents for substantial advance fees
which it refers to as donations. The courses and materials cover
a wide range of topics, many of which can be objectively
described as secular in nature. CSFSO facilities sell lodging,
food, publications, and assorted other items.
Under either its official corporate structure or the divisional
management scheme imposed on it by Hubbard's teachings, neither
the adherents nor clients who have participated in services
provided by the corporation have any authority in its
organization, employment decisions, or management and it is
unclear if individual Scientologists belong to or are registered
members of a specific "Church."' In both a legal and practical
sense then, CSFSO is an entity distinct from the body of
adherents who may attend courses or receive auditing there. The
defendant has itself indirectly acknowledged this dichotomy in
complaining that the negative media reports have repeatedly
failed to distinguish the local corporation from the religion
itself or its body of believers.'
C. OVERVIEW OF LISA MCPHERSONSS "TREATMENT" AT THE FORT
HARRISON.
Less than three months after achieving the Scientology status of
"Clear," McPherson undressed and walked down the street naked
after being involved in a minor accident in which she was not
injured. Her actions and mechanical speech, which was littered
with Scientology terminology, suggested the existence of
unresolved mental and emotional problems despite her eighteen
year use of Scientology "technology." Lisa told paramedics that
"Nobody knows this" but I'm an "OT" (an operating thetan, a
Scientology state beyond
See, page 413 of "what is Scientology" attached to defendant's
pleadings which indicate that membership in Scientology is
governed by membership in the International Association of
Scientologists rather than affiliation with an individual Church
or Mission.
This assertion, contained in the affidavit of Michael Rinder, is
urged by the defendant as a "substantial burden" imposed upon
it.
3
that of "Clear"). She indicated she wanted people to think she
was crazy because she wanted help. She referred to herself
variously as a bad person, having bad thoughts, who had taken
"her eyes off the object" and was tired and wanted help. She
agreed to go with paramedics to neArby. Morton Plant Hospital
for evaluation.
Within minutes of her arrival, a group of Church of Scientology
Flag Service Organization, Inc. (CSFSO) supervisors and
employees arrived at the hospital and attempted to intervene.
While at least one handed out anti-psychiatric literature,
others insisted on being present with Lisa in the emergency
room. With these CSFSO employees and other Scientologists waiting
nearby during the evaluation, hospital personnel determined that
Lisa did not meet the criteria for involuntary hospitalization
and that she did not wish to stay voluntarily at the hospital.
After corporate employees assured the hospital staff that they
would be responsible for her, Lisa agreed to leave with her
"friends from the congregation," and was discharged against
medical advice into their care.
After leaving Morton Plant Hospital in the custody of CSFSO
employees, Lisa was taken to the Fort Harrison Hotel, a
Clearwater facility less than a quarter mile from the hospital
which was owned and operated by the defendant. From minutes
after her arrival until seventeen days later when her dead body
was delivered to a New Port Richey emergency room, no one other
than officers or employees of the corporation saw her, touched
her or spoke to her. She had no contact with her family, had no
access to outsiders, had not been permitted to leave the hotel,
and had remained physically and mentally incapable of caring for
her own needs.
During that period, more than two dozen corporate employees, from
CSFSO's Security division, its Medical Liaison Office, and
numerous other corporate offices shared responsibility for her
care. Employees were assigned to watch her and made daily
reports on her condition to Alain Kartuzinski, who at the time
was the Senior Case Supervisor for CSFSO. As the Senior "C/S" he
was the highest ranking corporate employee responsible
4
overseeing the quality of spiritual technology or auditing - one
of the major functions of the Clearwater corporation. His job
included treating so-called "PTS, Type ill's. "6
Lisa's desqent from marginal competence to delirium occurred
rapidly during the corporation's attempts to diagnose and
"treat" her. The State believes that the evidence will show that
CSFSO employees attempted to diagnose Lisa's condition without
medical help and, without her consent or competent medical
authority, force-medicated her with substances to treat her
apparent insomnia and delirium, injected her with muscle
relaxants to induce sleep and fed her concoctions of herbal
remedies mixed with food, vitamins and prescription medication.
Despite the obvious deterioration of Lisa's mental and physical
health, she was never taken to or seen by a licensed medical
doctor from the time she arrived at the Fort Harrison until her
death 17 days later. She lost weight and became weak in the
corporation's exclusive care, losing 20-40 pounds. She grew too
weak to walk and eventually became so severely dehydrated that
she would have been virtually unresponsive for from one to three
or more days prior to her death. Her death was a result of her
severe dehydration and immobility which led to the development of
a pulmonary embolism. Despite clear warning signs of the
severity of Lisa's condition, CSFSO employees intentionally
bypassed readily available emergency care at nearby Morton Plant
Hospital (where doctors had warned CSFSO employees that they
would be held responsible for Lisa's welfare) and delayed for
hours before driving her to an emergency room in another County.
D. THE FORENSIC EVIDENCE.
Chief Medical Examiner Joan Wood determined based upon the
autopsy conducted by Dr. Robert Davis, the laboratory results
reflecting vitreous levels, and consultation with outside experts
that Lisa McPherson's death occurred as a result of severe
dehydration and
PTS stands for "potential trouble source" and is a Scientology
term for person exhibiting psychotic behavior. See pages 39-42.
5
immobility which resulted in a pulmonary embolism.' The five foot
eight McPherson, whose weight eighteen days earlier had been
estimated at 150 pounds by paramedics and 135 pounds' by one of
her caretakers, weighed approximately 108 pounds at the time of
autopsy. Her sunken eyes and cheeks and her dry skin reflected a
gaunt appearance consistent with her severe dehydration. Her
mouth, teeth and eyelids were crusted with dried, solid
material. She had bruises on her hand and back, as well as the
side of her left thigh and also had a series of smaller bruises
up and down the lower part of both legs. There were numerous
abrasions on her hands wrists and lower arms and on her feet and
lower legs, with some of these abrasions having the appearance
of insect bites. At the beginning of her stay Lisa had been
described as being in good health, with her legs unblemished,
having almost perfect "porcelain-like" skin.'
An embolism is the blockage of an artery or vein by a plug or
clot (in this case the latter) that has migrated from another
part of the body. In this case the embolus (clot) is believed to
have originated in a thrombus in the left poplitial vein,
located on the back of the leg behind the knee. A thrombus is a
blood clot inside a blood vessel, as opposed to a clot outside
the vessel in surrounding tissue. Because the embolism emanated
from a vein, it would travel toward the lungs (for the blood to
be oxygenated) after passing through the right side of the heart.
As the pulmonary artery branched and became smaller, the
embolism partially blocked the left pulmonary artery. The right
pulmonary artery was unobstructed, and the blood flow to that
lung was unblocked. There are a number of risk factors that will
predispose persons to a thrombus. Injury or surgery which causes
the immobilization of a limb or patient can be an important
factor. Dehydration is another common factor.
The visual evidence of Lisa's dehydration is well established.
The caretaker notes and testimony establish a continuing concern
with the amount of food and fluid Lisa was ' The autopsy
report is attached as exhibit 5. ' Statement of Leslie
Woodcraft at page 31. Statement of Alice VanGrondelle, April
1998, at page 19. 6
taking in. She was estimated to be 150 lbs. by paramedic Bonnie
Portolano at the time of the accident and weighed approximately
108 pounds at autopsy. Janis Johnson acknowledged that on the day
of her death Lisa looked very thin, as if she had lost weight
and appeared to be "majorly" or very dehydrated prior to being
taken to the hospital. Johnson described Lisa's skin and sunken
eyes as indicating the degree of her dehydration. Dr. Minkoff
also indicated she looked "horrific" when she arrived at the
Columbia NPR emergency room and appeared to be severely
dehydrated. Despite generic language in the autopsy report that
Lisa was of "average nutritional status" it is clear from Dr.
Davis' testimony that he felt she showed obvious physical
symptoms of dehydration. Davis describes a "Hippocratic Facies"
as being present. This term, normally used to denote the "face"
of death, is used (or misused) by Davis to describe the sunken
facial expressions, gaunt look and texture of the skin indicative
of significant dehydration. The autopsy photos confirm these
observations.
The tests run on the vitreous humor taken from the chambers of
the eyes at autopsy provide even more dramatic evidence of
dehydration. These samples are drawn from both eyes in a single
syringe, then refrigerated until removed for analysis. Forensic
research has confirmed that postmortem levels of such substances
as urea nitrogen, chloride, creatinine and sodium from the
vitreous fluid removed from the eye are accurate reflections of
the level of those substances in the blood at the time of death.
Lisa's levels were extremely elevated
and indicated extreme dehydration: Vitreous Urea Nitrogen
300 mg/dl Vitreous Creatinine 2.6 mb/dl Vitreous Chloride
161 mmol/1 Vitreous Sodium 180 mmol/1
All of these levels are significantly elevated. Sodium levels in
the blood normally range from 136 to 142 with readings over 145
being considered diagnostic of hypernatremia. to The 161
Chloride level is also significantly above the normal range of 95
to 113 for serum chloride. Creatinine is an end product
resulting from muscle activity.
1° Hyponatremia is a condition of excessive sodium levels in the
blood which can be fatal.
7
Normal levels are between .5 and 1.4. Levels of creatinine are
relatively unaffected by diet and it is therefore a useful
measure of kidney function. Urea Nitrogen is a substance created
as a result of protein metabolism and produced in the presence
of specific enzymes in the liver and is particularly stable in
vitreous fluid after death. Lisa's urea nitrogen level is
extraordinarily high. Urea nitrogen is normally present at a
ratio to creatinine of 10 to one; Lisa's urea nitrogen level is
almost 100 times her already elevated creatinine level.
Consultation by Dr. Wood with other medical examiners and
clinical specialists has confirmed that these test results are
consistent with McPherson's condition and Wood's conclusions. At
this level of dehydration, Lisa would have been severely and
obviously symptomatic for a considerable time and for at least
the last 24 hours would have been virtually unresponsive. These
experts further believe that the extreme dehydration, which
dramatically reduces blood volume and pressure, and the
immobility resulting from her condition, would have been the
logical cause of the thrombus that led to the embolism.
Dr. David Minkoff, the Scientologist and physician who pronounced
Lisa dead, has suggested in his testimony, however, that Lisa
may have been "septic" and that a massive infection may have
played a part in causing diarrhea and "acute" (i.e. quick onset)
dehydration. Minkoff based this speculation on a positive test
for bacteria in her blood and his interpretation that the
abrasions on her extremities were septic petechiae. The State's
experts discount the single blood test (two are normally drawn)
as being contaminated by skin bacteria. The autopsy results
clearly reflect that the lesions on Lisa's body are in fact
abrasions with no underlying hemorrhaging and therefore not
petechial hemorrhages caused by a systemic infection. It would be
impossible for the urea nitrogen levels reflected in Lisa's lab
tests to have occurred in such a brief period. Moreover, although
one caretaker suggests Lisa did have some diarrhea the night
before her death, there is no evidence or testimony suggestive
of the type of massive or continuous diarrhea which would be
symptomatic of sepsis or sufficient to cause severe but acute
dehydration.
8
E. THE INVESTIGATION.
Hospital authorities notified police of McPherson's death. An
autopsy was ordered and an investigation into the unusual and
suspicious circumstances of her death began. The following day
police attempted to view the room in which Lisa had been kept,
and were shown a room that had been completely cleaned and its
furniture changed. In a February, 1996 letter to police, CSFSO
corporate counsel and resident agent Robert Johnson claimed that
Ms. McPherson's stay at the Fort Harrison Religious Retreat was
intended to provide her with "rest and relaxation," indicating
further that "She had been involved in an automobile accident
and may have suffered some physical trauma and mental anguish.
The Church provided her with safe and familiar surroundings." The
letter reiterated that the Medical Liaison Office employees were
not licensed to perform medical functions and that their
function was only to help find a doctor or dentist for a
parishioner. Initial interviews continued to portray Lisa as a
parishioner voluntarily staying at the Ft. Harrison for "rest and
relaxation," who was not under full-time observation but rather
received some extra attention when requested. Public statements
and press releases by the defendant and Scientology spokespersons
confirmed this false view and denied responsibility, even though
internal investigations by CSFSO the night of Lisa's death
evidenced a ; t completely different picture.
Illustrative of the early statements are the May 29, 1996 and May
30, 1996 taped interviews of Janis Johnson and Alain Kartuzinski
by the Clearwater Police Department which were conducted in the
presence of CSFSO corporate counsel Robert Johnson." Janis
Johnson was a deputy in the Medical Liaison Office who was
responsible for handling staff employees in their dealings with
health related professionals. She had graduated medical school
and been a licensed as a practicing physician before problems
caused her
Attomey Johnson was allowed to make his own tape of the stater,
Kartuzinslti's taped statements to police are to be found as
attachments 2 and S
9
practice in 1993 and let her license lapse in 1994. She has never
been licensed in the State of Florida.
Alain Katcuzinski was the acting Senior Case Supervisor, the top
auditor and head technical person within CSFSO's corporate
organization. He had in the past been Lisa's personal auditor.
After being notified that Lisa had been in an accident and was
at the emergency room, he arrived at the emergency room and
remained near the entranceway during Nurse Joe Price's attempt to
interview Lisa. He drove Lisa to the Fort Harrison and had
others assist her in getting a room. Despite his denials of
involvement in the taped statement, it was later learned that
Kartuzinski briefed many of the caretakers, instructing them
that Lisa was a "Type III" and telling them to prevent her from
hurting herself or others.
During interviews with police Johnson portrayed Lisa as a
parishioner staying at the Hotel for rest and relaxation who was
to get extra care from the staff, but not as being a clearly
incompetent, severely disturbed woman who was actually unable to
speak coherently and oblivious to her own needs. Johnson stated
she first met Lisa about five days after the stay began. Johnson
had gone to see Lisa with Suzanne Green (Schnurenberg) to make
sure everything was okay because Suzanne had some concerns. 12
Janis repeatedly told detectives that "they" were not attempting
to treat her mental or physical problems ("That is not the point
of scientology: the Church does not do that.") because she had
been "checked" out at Morton Plant and found not to be a danger
to herself or others." She stated Lisa had not requested any
services and none would have been provided without her consent.
She also claimed Lisa was taking an herbal supplement on her
'Z Transcript at 18.
13 Transcript at 17, 57, 58.
10
own, insisting that the M.L.O. would not make recommendations
about over the counter sleep aids.''
During the interview Johnson repeatedly misstated or minimized
the symptoms and bizarre behavior which we now know that Lisa
exhibited. She said Lisa was "just upset" but "she was `with
it'"'5; that Lisa just needed a break to get away from
everything; if things weren't going well then (according to what
Suzanne allegedly told Johnson) she would probably just sit and
think about it and it would be hard for her to get to sleep. '6
She described Lisa as merely being "thin and real wound up" on
Johnson's first visit and claims that on a second visit Lisa was
better and made a coherent request for powdered vitamins." She
implied that it was Lisa who was taking the herbal remedy
valerian root. (In fact, Lisa would frequently refuse to swallow
these and caretakers would mix them with other substances to
induce her to swallow them.) She acknowledged a single episode in
which Lisa went into a rage stud had to be given a "big hug" for
about ten minutes till she calmed down" (she was actually
restrained for an hour on one occasion) but stated that was the
only problem that they had." On the day of Lisa's death, Johnson
indicated she had a coherent conversation with Lisa in which Lisa
overcame her own reluctance and agreed to go to the hospital.
Johnson was also evasive and intentionally misleading when
detectives repeatedly asked if anyone was assigned to look out
for Lisa on a continuing basis, indicating Lisa was merely a
"hotel guest"; it was true that they gave Lisa some extra
services as people
" Transcript at 14.
'° Transcript at 17.
'b Transcript at 15.
" Transcript at 28.
" Transcript at 31, 32.
19 Transcript at 63.
11
checking up on her but "nothing like that."2° She claimed she was
not sure what Lisa did or where she went during the day. (In
fact she never left the room except for venturing a few feet out
and being "guided" back in.) Johnson further indicated "The plan
was have the people around there in the hotel just give her some
extra attention. "t` Asked if anyone checked on her on a routine
basis, she responded that Suzanne would pop in to make sure
everything was fine.
Janis failed to mention the assignment of other staff members to
serve as Lisa's caretakers, failed to mention Lisa being force
medicated or her own involvement in giving Lisa medication and
shots, and did not mention her being removed from most of her
normal duties and being specifically assigned to Lisa. She did,
however, admit that except for Suzanne (who was a friend of Lisa)
she knew as much as anyone about Lisa's stay.' She admitted that
she not only talked to others about Lisa's condition and got
reports on her but on average went by about every other day to
check on her. She indicated she usually tried to go by around
four in the afternoon."
Johnson indicated that she had first toted bruises on Lisa the
week of Thanksgiving after Lisa had gone into a rage and was
kicking furniture?° The Friday after Thanksgiving week (an
apparent reference to Friday, December 1) she noticed that
Lisa's health was deteriorating; Lisa was noticeably thinner but
calmer and had been sleeping better' Johnson allegedly told Laura
Arrunada (an M.L.O. employee who had been to medical school in
Mexico City but had never been licensed) to take extra time to
get fluids and food
m Transcript at 26. 21 Transcript at 23. u
Transcript at 63. b Transcript at 25, 30, 31. u
Transcript at 31, 32. 25 Transcript at 34.
12
into Lisa over the weekend. Janis was to be involved in a project
over the weekend and knew she would not be able to check on
Lisa. When she got back into her normal routine on Monday she
went by to see Lisa on that night around eight p.m., and Lisa
was already asleep under the covers. Janis backed out of the
room and didn't wake her .26 According to Johnson, Laura
indicated she had some difficulty getting food and fluids down
Lisa but did not indicate that her condition had worsened. She
did not go by the next day until around seven p.m. when she was
beeped by Laura.n When she got there, Johnson claimed that Lisa
looked septic (with what appeared to be petechial hemorrhages)
and very, "majorly" dehydrated." She was allegedly talking
slowly, but not babbling nor not making sense. Lisa was
allegedly happy to see her and though expressing hesitation
agreed to go to the hospital for treatment?' Johnson stated she
called Dr. Minkoff, telling hint that Lisa needed to be seen
tonight and asking him to give them a room away from the "hoo
ha" of the normal emergency room '°
Similarly, Alain Kariuzinski's initial statements to police gave
no hint of Lisa's severe psychosis, his involvement in setting
up "caretakers" to watch her around the clock, or that he had
directed that he be updated by written reports on her day to day
condition. Kartuzinski indicated he knew Lisa in passing as he
did hundreds of other parishioners. He stated he was informed (he
believed through a phone call from David Slaughter, Lisa's
employer) that Lisa had been in an accident and was at Morton
Plant. When he couldn't find another minister to go, he went down
to the hospital himself. He was allowed back to the area where
Lisa's was being questioned by psychiatric nurse Joe Price.
26 Transcript at 36, 37.
z' Transcript at 38. Laura allegedly said she had been
having diarrhea for 24 hours. She did not say this in her
statement to the SAO. 29 Transcript at 39, 40. r'
Id.
30 Transcript at page 47. Minkoff does not confirm this, but
indicates he insisted on Lisa being seen before being given a
prescription for antibiotics.
13
According to Kartuzinski, Lisa answered Price's questions,
indicating she was oriented to time. Lisa wasn't crying but
seemed embarrassed. Price asked him to leave the room while he
continued to question her; Kartazinski walked to the corridor
where DeCuypere and another scientologist were, but remained
within earshot. Lisa trade it clear she did not want to stay at
the hospital, but wanted to go back to the Ft. Harrison with her
friends from the Church. Kartuzinski further stated that Price
decided there was no reason to keep Lisa and she was allowed to
check out.
Kartuzinski had the idea that she just wanted to go for rest and
relaxation and she gave no indication of seeking services. He
drove her to the Fort Harrison, dropping her off so she could
check into a room. He implied that Lisa checked into the room
herself in the ordinary course of events. About ten minutes
later, Kartuzinski went to the room and briefly checked on her;
she said she was okay. He claimed he did not see her again
throughout her stay .'t
His only follow up was calling the M.L.O. and talking to "whoever
answered the phone" and asking them to check on Lisa and see if
she needed anything. He was told she wasn't eating or sleeping
well the first two or three days but that it was better now.
He stated he was notified in the afternoon or evening the day of
her death that there was some sort of medical difficulty. He
called for someone to check it out. (He believed Lacy Spencer,
his assistant, had brought the problem to his attention.) He
said that later that evening Janis came by and said Lisa had
some infection and she was worried; she asked to use the phone to
call the doctor. She called Minkoff and Alain "guessed" that
Minkoff acknowledged that something needed to be done.
(Kartuzinski claimed not to have understood a lot of the
terminology). When asked what happened to Lisa's personal
effects and who cleaned the room, Kartuzinski said he had no
knowledge but the hotel did have maids. The
31 Kartuzinksi has under immunity acknowledged the falsity of
this statement. He did briefly visit Lisa's room later in her
"stay." Her condition was so distressing that he reorganized the
caretakers so that more than one person would be there at all
times.
14
detectives sum up saying "So... at Lisa's request she was pretty
much you say left alone during this period of time?" Kartuzinski
responds "I imagine."
As the police investigation progressed into 1997, actual
caretakers were identified and interviewed under oath (after
insisting on immunity) and their written records of caring for
Lisa were subpoenaed. A different picture emerged.
It became clear that Lisa was delusional and combative throughout
her stay, was watched on a 24 hour basis by CSFSO employees
because of the severity of her illness, had repeatedly resisted
her "caretakers," and was subjected to forced medication and
injections. It was learned that written daily records were kept
of Lisa's condition, but that crucial records, including all
written reports relating her condition on the last two days of
her life, had mysteriously and without adequate explanation
disappeared. As these facts came to light and the falsity of the
initial interviews of CSFSO employees became obvious, additional
CSFSO witnesses also refused to testify on Fifth Amendment
grounds unless given use immunity.
The inaccuracy of the initial statements, however, would have
been known to the defendant at the time (hey were made. Almost
immediately after Lisa's death, the Office of Special Affairs
(OSA), which handles legal and public relations problems for the
corporation, began an investigation. All personnel who had
contact with Lisa were directed immediately to "Flag" and ordered
to write down their observations and contact with Lisa. These
first hand accounts by the witnesses were then "summarized" in a
typewritten memo by OSA employee Marcus Quirino1 Corporation Vice
President Brian Anderson also wrote a summary of a conversation
with David Minkoff. Anderson shared this latter summary with
CSFSO attorney Robert_ Johnson the next day, but stated did not
provide Johnson a0y. of the Quirino memo! Anderson later
destroyed all the original notes which had been written for
Quirino by the caretakers. At least one of the persons who
accompanied Lisa to the
" See Attachment 8.
15
hospital (Paul Greenwood) was ordered to write a report to CSFSO
security offic. officials also secured Lisa's confidential "PC"
folder where the original caretaker's were kept and in which
Kartuzinski testified he had made notes during Lisa's stay con,
his plan for Lisa's treatment.
Despite the corporation's knowledge of the inaccuracy of the
statements to police, it continued to affirm the reliability of
the information given to officers. In a December 1996 press
release castigating the Clearwater Police Department, the
"Church," listing CSFSO counsel Robert Johnson and CSFSO Vice
President Brian Anderson as contact persons, urged in part:
....The facts are as follows. Lisa McPherson had been staying at
the Fort Harrison hotel after a traumatic car accident. During
her stay, she suddenly took ill. After her initial reluctance was
overcome, she was driven to see the physician of her choice, but
died enroute. Investigation by the Clearwater Police concluded in
early 1996 with a determination that the cause of death was a
pulmonary embolism exacerbated by a severe staphylococcus
infection. [Sgt.] Andrews is quoted [referring to a newspaper
article] as saying there is no indication what occurred during
McPherson's two week stay at the Fort Harrison. That is a bald
faced lie. There are hours and hours of interviews with Church
members detailing exactly what occurred during Lisa's stay at the
hotel. Nothing in those interviews is the least bit sinister or
mysterious, despite Andrews attempts to imply otherwise.
Eventually, CSFSO supplied approximately thirty pages of notes in
response to State subpoenas. The notes were written by eleven
separate caretakers covering nineteen shifts on eleven separate
days." CSFSO also supplied the internal reports generated by
Brian Anderson and Marcus Quirino. The notes detail the severity
of Lisa's psychosis and her refusal to eat and drink normally on
any regular basis. They also describe instances where Lisa was
violent and restrained, where she attempted to leave and rejected
attempts to medicate her with prescription medications, herbal
remedies, vitamins, over the counter substances and even
magnesium injections. The notes stand in stark contrast to the
taped statements of Johnson and Kartuzinski and expose their
concerted initial attempt to mislead the police at the beginning
of the investigation.
33 These notes are included as attachment 1.
16
One of the notes is entitled M.L.O. Report, is in Johnson's
handwriting and is signed by her as "Jams Johnson, M.O. "'° It
is a directive dated the Friday before Lisa's death and
indicates: MLO Report 1/12/95 I 1°° Lisa McPherson Given 2gm
MgCh Im at 1030 + 2- 500 mg Chloral Hydrate (capsule pierced and
as much possible sqitted into her mouth). She swallowed and fell
asleep in the middle of a sentence. Reap rate 18-24.
Extremities still cool but not cold. S.D.L.V.'$ needs relief
now; I will stay until replacement comes.
Plan: (1) Valerie or watch personnel W/ medical training for
Next 8 hrs. (2) Needs 2L fluids when awake and attempt to feed
(3) Call if any ?'s prob's.
ML, J. Johnson M.O.
This note corresponds with caretaker notes by Boykin indicating
Johnson was present and gave Lisa Magnesium shots; it is also
consistent with other testimony about Sylvia DeLaVega suffering
a "burn out" after caring for Lisa. This note signed by Johnson
as M.O. ( a apparent reference to "Medical Office" or "Medical
Officer") reflects her diagnosis that McPherson was suffering
from dehydration and her prescription of treatment by trained
personnel.
Concerted but unsuccessful efforts were trade to locate the
missing records, particularly those relating to the last two
days before Lisa's death. The chain of custody on the existing
records is hopelessly confused and is complicated by the fact
that the records
3° While this abbreviation presumably stands for Medical
Office(r), there is no such office or position. Johnson is
referred to as doctor in the caretaker notes.
ss Ile abbreviation S.D.L.V. is an apparent reference to
Sylvia DeLaVega.
17
were in "PC" folders which may not be reviewed by Scientologists
of a lesser level than Lisa. It appears that all the records
were in Kartuzinski's office before Lisa's death. After Lisa's
death they were gathered up from Kartuzinski's office by Annie
Mora and sent to California. The files were searched for
relevant documents by Lynn Farney who apparently then sent
documents to the attorneys for the Church in Clearwater. Despite
extensive and time consuming efforts many records remain missing
with no explanation. The report written by Paul Greenwood, all
caretaker notes by Heather Petzold, all caretaker notes for the
final two days of Lisa's life and all contemporaneous notes of
the incident by Kartuzinski have been removed from Lisa's "PC"
folder and lost or destroyed.
The details from these remaining records acrd the sworn
statements of CSFSO employees indicate that from the outset of
her stay and continuously until the evening of her death, Lisa
was viewed by her caretakers as deeply psychotic and unable to
care for herself, talk coherently or make logical decisions. She
was watched initially by Emma Schamerhorn, an elderly lady
working in the Medical Liaison Office (M.L.O.). Because of
Emma's age and the importance of having continuity in Lisa's
care, Alain Kartuzinksi approached Andrea Sprecher and got
permission to have Janis Johnson of the M.L.O. assigned full
time to the task. Under Kartuzinski's direction, other employees
organized a schedule where caretakers were assigned to watch
Lisa for her twenty-four hours a day. Only one of the caretakers
knew Lisa to any extent. They were asked to make written reports
to Kartuzinksi. Lisa's behavior as described in these notes
indicated she was hyperactive, delusional and hallucinating. She
tried to harm herself and others early in the stay, struck
caretakers, engaged in repeated self-destructive behavior and
had to be forcibly restrained on several occasions to prevent
injury to herself or her caretakers.
After the first week, Lisa routinely urinated and defecated on
herself and rarely slept. She had conversations with people who
were not there, claimed to be people she was not, sang and danced
around the room as if giving a performance, crawled around on the
floor, stood in the toilet, got in the shower fully clothed,
tried to walk out of the room in a state of
18
undress, "humped" the floor as if having sex with an imaginary
person, drank her own urine and on at least one occasion placed
her head in the toilet.
It is impossible to reconstruct the actual amounts of fluid and
food ingested because the caretaker notes are erratic and
imprecise in their notations and they were written by untrained
CSFSO employees rather than health care professionals. We also do
not have notes or accurate testimony for every shift. It is
clear, however, that after the first several days Lisa never
completed a normal meal and her only real sustenance was an
occasional protein shake and mixtures of fruit and protein
powder. She sometimes would ingest an entire shake and on other
occasions would spit out everything that she was fed. Her fluid
intake was also limited, although again no precise amounts can
be reconstructed from the available documents and caretaker
testimony.
The combativeness that exemplified the early portion of her stay
seemed to subside and guards were no longer posted at the doors
for the last four or five days of her life. At one point Sylvia
DeLaVega could no longer handle her caretaker responsibilities
and they were undertaken by more emotionally stable staff
members. By Saturday, December 2`d, both Heather Petzold (in her
oral testimony) and Rita Boykin (in written notes to
Kartuzinski) indicated that Lisa had grown so weak she could no
longer stand or walk. They have since said, however, that Lisa
made a "partial" recovery gaining back strength before her
sudden demise on Tuesday December 5`°. The State's testimony will
indicate that Lisa's dehydration was so severe that she would
have been extremely and obviously symptomatic for at least a day
and probably several days before her death. These symptoms would
not only include mental confusion, but during the last few days
lethargy increasing to almost complete unresponsiveness.
When Lisa was allowed to leave Morton Plant on Saturday November
18, 1995, CSFSO employee Judy Goldsberry-Weber, a subordinate of
Johnson's in the Medical Liaison Office, had promised Dr. Lovett
(whom she knew from prior dealings) that Lisa would
19
receive necessary care." Weber later learned that Johnson was
involved in Lisa's care and asked Johnson how Lisa was doing.
Johnson gruffly told Weber to not to talk to anyone about it that
she (Johnson) had been placed in charge and Weber was no longer
involved. Some days later,. Weber was asked to pick up a
prescription for Lisa from a Largo pharmacy (she believes it was
valium, but detectives have been unable to locate this
prescription). She again asked Janis how Lisa was doing in case
she ran into Dr. Lovett and he asked. According to Weber, they
wound up getting in a screaming match after Janis said "You
don't have to worry about him, I'm in charge. Butt out."
David Houghton testified that he overheard Janis talking on the
phone about getting Lisa to take medication." Houghton, a
dentist who was preparing to seek licensure in Florida, indicated
he believed he could get Lisa to swallow. Later, probably on the
21", he and Janis had a conversation with Dr. Minkoff about
prescribing medication to help Lisa sleep. Houghton testified
that there was an initial discussion of liquid chloral hydrate
but they were unable to find that at any pharmacy. Dr. Minkoff
then prescribed injectable valium under Houghton's name for Lisa
after a second phone conversation involving Minkoff, Houghton
and Johnson." Houghton picked up the valium from the pharmacy
and returned it to Johnson the next day. During these
conversations with Minkoff, Houghton and Janis described Lisa as
a Type HI (a psychotic person) who was having difficulty
sleeping. Hougton did not believe that Lisa was ever given the
valium, because in a follow up conversation with Alain
Kartuzinski he overruled using this drug on the premise that it
may be too strong and affect later attempts at auditing.
Houghton then, on three occasions with Kartuzinski's approval,
medicated Lisa with a mixture of Benadryl (an over the counter
antihistamine generically known as diphenhydramine which is used
in non-prescription sleep aids) and aspirin. The aspirin was
36 A copy of Weber's statement is attached as exhibit 9. " A
copy of Houghton's two statements are included as exhibits 10 and
11. '° Minkoff's recollection is imprecise as to who was on the
phone during these conversations. 20
suggested by Kartuzinski after looking up Hubbard writings that
suggested that aspirin may serve to block some of Lisa's visual
delusions. Houghton did this by filling an irrigating syringe
with a crushed aspirin and Benadryl (a syrup) mixture then
injecting it down the back of Lisa's throat. while she was held
onto by others. lie never discussed with Lisa what he was giving
her or why, as she was not capable in his estimation of coherent
conversation or consent. Houghton was relatively sure he told
Janis about this after the first incident and before the next
two.
Weber recalled overhearing Houghton and Laura discussing the
procedure and became very upset; Weber has a nursing background
and knew patients could only be force medicated with physician
authorization. According to Weber, Houghton and Laura closed the
door so that Weber could no longer hear what they were talking
about."' Weber then confronted Janis about this, asking what
doctor had approved such a procedure. Janis said to "butt out."
When Weber indicated she thought something was wrong, Johnson
said that it was not Weber's concern. Weber indicated to Johnson
that she had never known Lisa to be violent and Janis responded
"Well, you know psychotic breaks." Weber was so upset about this
unauthorized use of forced medication that she called the CSFSO
legal office and asked Judy Fontana to "check it out." Fontana's
status in the corporation is indicated by her elevation to an
officer of the corporation in early 1996. Her husband Humberto
Fontana was in the Office of Special Affairs and had been present
at Morton Plant when Lisa was released.
It appears from caretaker notes, witness interviews and Johnson's
taped admissions that prior to December 5'°, Johnson was at
Lisa's room on at least six dates - on November 23rd, November
24"', November 29'", November 30'", December 1", and December 4"
- and that she talked with the caretakers or others about Lisa
on November 26'", 27'° and December 3`°, 1995. Documents and
testimony concerning these dates provide relevant detail
concerning Lisa's treatment and Johnson's involvement:
3° Houghton denied any recollection of such an incident.
21
11/23/95 Security trainee Sam Ghiora who was posted at Lisa's
room door from approximately eleven a.m, till 9 p.m for 8-10
days in the middle of Lisa's stay remembered Johnson being at the
room on only one occasion, Thanksgiving November 23, for about
four hours. While Janis was there Lisa tried to exit the front
door and Ghiora "guided" her back inside. Lisa said she doesn't
know what's happening and asked Gltiora if he could help her.
Ghiora described a number of bizarre behaviors by Lisa,
including her "not making any sense," repeating "E. T. phone
home," rattling off colors and numbers, and simply not being
aware of what was going on around her.
11/23/95 Sylvia DelaVega testified that she began her shift at 3
4 p.m, and stayed until approximately three a.m. the next
morning. Heather Petzold was there when she began her shift.
During the shift Lisa was saying she was an artist and singing
and dancing. Janis arrived around two a.m. Lisa was walking
around the room, had hit the lamp and started taking off her
clothes. DelaVega was present when Johnson gave Lisa a shot in
the buttocks. Initially she stated she didn't know the date,
(i.e., the 26'", 27', etc.) but later in statement indicated it
was the first day she was on watch, which would be the 23`'.
(This witness is a Mexican citizen and is currently residing in
Mexico.) Petzold also indicated she was present when Janis gave
Lisa a shot in the buttocks but doesn't recall the date. Janis
said the shot was to help her sleep but Petzold did not remember
if she was told what the substance was.
11/23/95 Leslie Woodcraft testified that she replaced Sylvia
DelaVega on the 231 who apparently got burnt out before her
shift was over. (She recalled this began around 12 midnight to 2
a.m.) Johnson was there when Woodcraft arrived. Lisa was acting
crazy the entire time, calling Janis "mommy," then walking
backwards and talking to herself and then talking to Janis again
as if she was someone else. Lisa went into the bathroom and
turned on all the spigots. Janis gave her a small pill that was
supposed to calm her.
11/24/95 After being briefed by Kartuzinski at around 10:30 p.m.
(he told them about Lisa's condition and that she had been given
medication so that she would go to sleep), Stracener and
Pendizini began a watch with Lisa around midnight. Stracener
testified that when she first arrived Lisa was asleep. She woke
up and began engaging in bizarre behavior, saying she was Michael
Jackson, singing, sucking her thumb and licking the wall. She
vomited up a dark substance that looked like blood; Ghiora and
Kellerhaus came and checked her out and didn't believe that the
substance was actually blood. Janis showed up later for about a
half-hour and checked out Lisa's mouth. She directed them to
give Lisa vitamins and water. Pendenzini confirmed that about two
hours after she began watch with Stracener, Johnson showed up at
the motel room and helped them change Lisa's clothes. Janis gave
her vitamins and orange juice, but did not give her a shot.
11125/95 Houghton administered first dose of Benadryl and aspirin
to Lisa using a syringe while others held her. He successfully
got her to swallow the concoction and later (he believes)
mentioned it to Johnson. He did not ask for consent or explain
the procedure to Lisa because he did not believe her capable of
understanding.
22
1
11/26/95 Sylvia DelaVega testified that on this Sunday she saw
Janis Johnson twice; Johnson indicated that Lisa was refusing to
take water or food and was refusing protein shakes and sleeping
more. (The witness identified this not by date but as second
Sunday of watch.)
1/27/95 Houghton, presumably in the early evening, administered a
second dose of the aspirin/Benadryl mixture. Houghton believed
that Rita and Heather were watching Lisa at the time; she was
"gently" restrained during the process. Lisa looked sweaty and
red in the face and was talking in non sequiturs. She seemed
more agitated than she had on the first occasion of forced
medication.
11/27/95 In her caretaker notes Rita Boykin indicates that Lisa
had slept only forty five minutes from eight thirty to 12:30 and
that she called the M.L.O. to get some instructions. The notes
indicate she spoke with "Dr. Johnson" re no real sleep at 4:00.
11/28/95 Houghton testified that he administered the final dose
of the aspirin/Benadryi concoction before he leaves for
Gainesville later in the day to take dental boards.
11/29/95 Valerie Demange testified that she believes it was on
this date that she saw Johnson give a Magnesium shot to Lisa.
There was some ambiguity as to the substance injected but at page
43 she indicates that Johnson told her it was Magnesium in the
shot to relax her muscles and get some sleep; at 75 she says it
was her "impression" that the shot was Magnesium and that Johnson
measured Lisa's respiration after the shot and at page 92 she
indicates that Johnson told her the shot was Magnesium to relax
the muscles. Demange indicates Janice called someone who she
asstuned to be Dr. Minkoff for approval prior to the injections'
11/29/95 Chloralhydrate prescription by Minkoff was filled.
11/30/95 is the approximate date of Sam Ghiora's last watch as
security in front of Lisa's room. He had been told by Baxter she
was not being violent anymore.
11/30/95 Rita Boykin's caretaker notes indicate at lam (which
would actually be Friday December 1": "Dr. Johnson just visited,
Not possible for her to have any more chloral hydrate. I need to
get four more valerian root capsules into her and a quart of
fluid."
12/1/95 Johnson issued a note in her handwriting indicating Lisa
was given "2 mg of MgCl2 IM" at 10:30 and two 500 mg chloral
hydrates. The note indicated Lisa fell asleep in midsentence
after getting medication. Johnson noted that respiration is IS
24 and that Lisa's extremities were cool but not cold and that
Sylvia (DelaVega) needs relief and Johnson will wait for
replacement. The note directs that the "plan" for the next 8
hours is: needs two liters of fluids when awake and attempt to
feed. Call if any questions or problems. Johnson has acknowledged
in her taped statement of May 1996 that she
Minkoff has adamantly denied that he authorized such injections
or provided injectable Magnesium.
23
noticed Lisa's health deteriorating when she saw Lisa on this
date; Lisa looked noticeably thinner.
12/2/95 According to her testimony, Arrunada gives Lisa chloral
hydrate on at Janis's instructions to help her sleep. This was
because Lisa was too active.
12/2/95 Both Heather Petzold's testimony (her reports are
missing) and Rita Boykin's caretaker reports indicate that as of
this Saturday, Lisa was considerably weakened and unable to walk.
We have no direct evidence that they communicated this
deterioration in Lisa's condition to Johnson. Kartuzinski
acknowledged this information in his immunized statement.
12/3/95 Although it is not documented in any of the caretaker
notes both Rita Boykin and Heather Petzold's current testimony
now indicate that Lisa began to improve and regain strength from
Saturday. (Petzold did not indicate this in her intitial sworn
testimony.) Sylvia DelaVega testified that she saw Janis on this
date in the M.L.O. office (she refers to it as the third Sunday
rather than by date) and asked he if she had seen Lisa. Janis
responded that Lisa was doing better and sleeping better. In
Johnson's statement, however, she indicated she was going to be
busy over the weekend and asked Laura to watch over Lisa.
Houghton testified that he had heard Janis was with Dr. Megan
Shields of California over the weekend who was giving physical
exams to a number of high level auditors. Other witnesses,
including Kartuzinski have confirmed this.
12/4/95 Johnson admits in her statement that when she got back to
her regular schedule, she stopped by Lisa's room at about eight
on this Monday night to see her. Lisa was already asleep and
under the covers, so Johnson alleges she backed out of the room
without waking her.
12/5/95 The chronology of events on Lisa's last day is confusing
and witnesses conflict on a number of material matters. There
appears to be a significant period of time between making the
decision to take Lisa to the hospital and actually leaving in a
van for New Port Richey. Emma Schamerhom testified in her last
sworn statement that she talked with Janis Johnson on either
Monday night or Tuesday morning and that she looked concerned.
Johnson explained that Lisa looked "septic". Schamerhorn does
not believe this was Tuesday night and did not think she had any
contact with Janis on the evening of Lisa's death. None of the
caretakers, however, remembered seeing Janis at all on Tuesday
until Laura paged her on the evening of the Fifth and Johnson
indicated in her statement that she did have contact with Emma
the night of Lisa's death. Johnson did not know how to get to
the hospital in NPR and Emma had come over with a hand drawn
map. Similarly, Janet Herring initially testified that she saw
Johnson on Tuesday, December 5'° and talked to her about Lisa.
Janis had a strange look on her face and looked white, which she
interpreted as Janis being distraught. Johnson said she was
worried about Lisa and that Lisa was doing worse and she was
going to take her to the hospital. Her impression was that there
was some urgency and she was going to do it right away. Herring
believed this conversation occurred during a break period in the
internship
24
training area which would place it (according to Herring's belief
of when the breaks take place) at about 3:45 - 4:00 p.m. In a
subsequent October 1998 interview, she testified that she has no
idea of the time when this statement took place. The conflicting
versions of the timing of Lisa's deterioration and trip to New
Port Richey are difficult to reconcile. Heather Petzold and Rita
Boykin had the afternoon shift taking care_of Lisa. Laura had
left at eight in the morning and was to return around five to
relieve Rita. Rita initially testified that she was present when
Lisa was given a bath around five o'clock and that Lisa was
walking on her own and talking at the time. In her last statement
however she insisted that she left before Lisa was given a bath.
Laura testified that she returned at five o'clock to replace
Rita. Lisa seemed weaker and her eyes were fixed during the bath
and she "shit" on herself. Laura believed this was the result of
her anal sphincter relaxing - something she considered a sign of
possible neurological trouble. She also noticed dark circles
around Lisa's eyes. Laura said she left at six o'clock to tell
Janis then returned to the room. Heather was with her at this
time. Janis came over at approximately seven o'clock and
indicated they were going to take her to Dr. Minkoff. Heather
testified that after Lisa's bath she left for 45 minutes to an
hour at a "normal time" for dinner; she believed it could have
been 5:15 toto 6:00 or 5:45 to 6:30. When she returned room was
empty and Lisa was gone. She had not seen Janis at all that day
or the day before. She recalled in her first statement that Lisa
was unable to assist them during the bath, but didn't seem to
recall her defecating during the bath or her rectal muscles being
dilated. She did indicate, when told of Arrunada's testimony
that Lisa's eyes were "fixed," that "that gels." Johnson stated
in her taped statement in May of 1996 that at about 7 p.m. she
got a page from Laura; it took her about ten minutes to get over
there. She was told by Laura that Lisa had diarrhea for almost
24 hours. (Neither Laura nor Heather testified to this; Rita
indicated Lisa had some diarrhea but not constant or
continuous.) She said Lisa was friendly and said Hi. Lisa was
clean and neat, but looked septic; looked very, "majorly"
dehydrated with dry membranes and sunken eyes She had
hemorrhaging similar to petechiae. She could carry on a
conversation, and made sense, but was slow to respond. She
agreed to go see Minkoff. Janis said she called Minkoff and
allegedly told him Lisa needed to be seen tonight that it
wouldn't wait till tomorrow and that she wanted a separate room
away from the hoo ha of the emergency room. Johnson realized she
didn't know how to get to the hospital and called Emma who ran
over a map. She thought it was about a forty minute drive, but it
took about an hour. Minkoff testified that he was on duty at the
emergency room and received a call from Janis shhortly before
seven (it could have been slightly earlier, but he is pretty sure
of time frame)." Janis said she was calling about the girl he
had issued the prescription for arid thought she had an
infection, possibly strep throat. She had had some diarrhea and
Janis wanted a prescription for penicillin. Minkoff responded
that if she needs a prescription she needs to be seen by a
doctor. If she was really sick, she should be taken to Morton
Plant.' Janis said she was not and said she would bring her to
NPR.
41 Minkoff is quoted in an earlier interview as indicating
the call was between 7:00 and 7:45 p.m.
42 A statement to this effect was overheard by another
witness in the NPR emergency room.
25
Minkoff said to bring her soon since he went off duty at ten. He
told her not to show at up 9:30. Minkoff does not believe he was
told about petechial hemorrhages, or that she was severely
dehydrated. Paul Greenwood was a chiropractor who was on staff in
the CSFSO in Clearwater. On December 5'° he was studying how to
use the e-meter" when called by his superiot Andrea Sprecher a
little before eight. (Sprecher confirms she was paged by Janis
to help and she assigned Greenwood instead because he was
stronger, yet still gentle.) She told him to help take this girl
to the hospital. Greenwood went to the Cabanas. Laura was in the
room and let him in. Lisa was in the room, lying down with her
eyes open, breathing loudly. They carried her to car. Greenwood
never saw any voluntary movement by any extremity or any body
part nor did he see Lisa ever acknowledge his presence. Lisa did
not talk on way to hospital; her breathing changed about halfway
to the hospital and became very quiet.
Kartuzinski declined to provide sworn testimony to the State
Attorney's Office without immunity. In October of 1998 he was
subpoenaed in for a State Attorney investigation, receiving
statutory use immunity as a result of the subpoena. Kartuzinski
acknowledged being at the emergency room and driving Lisa back to
the Ft. Harrison. He acknowledged lying to the police in his
earlier taped statements out of concern for himself and
"possibly" concern for the Church but denies coordinating those
falsehoods with other witnesses." He admitted that he did a
report of his interview with the police for the Office of Special
Affairs after it occurred." He testified contrary to his
earlier taped statements to police that he had a brief
conversation with Lisa when she first arrived at the hotel in
which he suggested it may be necessary to do some auditing and
that it would be nice if she would sleep, take vitamins and eat
well in preparation for this. According to Kartuzinski Lisa said
okay. Kartuzinski did not discuss any specifics with her because
he had not yet determined what auditing would be necessary.
Within a short period of time, Lisa's condition deteriorated
markedly and she was incoherent and no longer competent to
°' The e-meter is a device similar to a galvanometer which
measures changes in skin conductivity and is used during the
auditing process to measure a subjects reaction to questions and
phrases spoken by the auditor. The subject holds a metal
cannister in each hand. The reactions are measured on a needle.
Karmzinski Sworn Statement at pages 72, 76. A copy of this
statement is included as Attachment 12.
45 Kartuzinski Sworn Statement at page 43.
26
make decisions or handle everyday affairs. He had no explanation
for not calling Lisa's family to inform them of her condition.
Kartuzinski acknowledged getting oral reports from Janis Johnson
and written reports from the caretakers. He states that the
latter were put into Lisa's PC folder by him. He also wrote notes
about this in about ten separate pages in the PC folder and made
about 20 pages of notes concerning scriptures and Lisa's
condition'6 Kartuzinski also read a report from auditor Ruthie
Humphery. Humphrey had attempted to audit Lisa during the middle
part of her stay after she had enough sleep. Lisa began licking
the e-meter; the auditing did not continue and was never
attempted again during Lisa's stay" These notes are also not in
the PC folder.
He recalls reading the notes from Petzold or Boykin indicating
that Lisa was too weak to walk or stand and being concerned
about her condition. He states that he also read the subsequent
reports up to her death (these along with all of Kartuzinski's
notes are missing from the file) and recalls them being about
the same - that her condition had not improved which was "not
very able to walk, still not eating enough, still not sleeping"
or drinking enough."
Kartuzinksi further claimed that Lisa was PTS Type III. He
defined PTS as a potential trouble source, meaning that Lisa
would be viewed as someone who represented a threat to herself
and to the "Church." 46 Kattuzinski Sworn Statement at pages 38
49. 47 Kartuzinski Swom Statement at page 49. '°
Kartuzinski Swom Statement at pages 155, 157.
27
Kartuzinski claimed he was notified between 5-6 p.m..°9 that
Laura was trying to get in touch with Janis about Lisa and that
subsequently Janis came over to his office after seeing Lisa. She
was out of breath (as if she had hurried to his office) and
concerned that Lisa was septic - meaning she, had a "big"
infection. They called Minkoff together and Minkoff would not
prescribed antibiotics without seeing the patient. Kartuzinski
specifically contradicts Minkoff's assertion that he suggested
that they take he to Morton Plant if Lisa was really ill, even
though others in the NPR emergency room recall overhearing this
part of the conversation.
Finally, Kartuzinski acknowledges that Lisa's treatment was not
in accord with the tenets of Scientology. Hubbard "scriptures"
indicate that Type Ill's can only be handled by Scientology
organizations with hospital facilities (neither Flag nor any
other Scientology facility meets this criteria) and a specific
directive prevents the treatment of "psychotics" at Flag." The
Scriptures require a full medical examination of a person in
such a distraught condition.5' Kartuzinski admitted that at the
time of the examination at Morton Plant and his initial contact
with her at the Fort Harrison she was not displaying the severe
mental symptoms that later developed. Finally, Kartuzinksi
acknowledged that Lisa did not consent to the injections and
medications he had given to her and she was not capable of doing
so."
Kartuzinski tested that at the time of Lisa's death he was the
Senior Case Supervisor for CSFSO and as such was the highest
person in the organization with control over the handling of
Lisa's situation' He informed Debbie Cook, the Captain of Flag,
of the incident and she would have been aware of the nature of
Lisa's condition from his
" Id. at page 144, 172-174.
50 Id. at pages 19-20.
" Id. at page 23. He assumed without knowing any details
that such an examination was done at Morton Plant.
5' Id. at pages 162, 170.
53 Id at page 203.
28
conversations with her. No one at the time was higher in the
organization to notify than Cook. Cook acknowledged in her own
testimony being informed of Lisa's stay and getting periodic
updates on her condition. Paul Kellerhaus (Senior in the Hubbard
Communications Office), and Arthur Baxter (Head of Security)
were heavily involved in the watch process. In addition Brian
Anderson, vice president of the corporation, has acknowledged
being informed of the situation and getting briefed by Paul
Kellerhaus every several days about Lisa's condition. In addition
to these individuals and the caretakers, the security guards
posted at Lisa's door, and the supervisors who briefed them and
organized a schedule, a significant number of other people in the
hierarchy were aware of Lisa's situation and received updated
information from briefings or conversations with other employees:
Marcus Quirino (Chief Deputy Officer and Chief Officer's
Organizing Officer), Annie Mora (Office of Special Affairs),
Janet Herring (Organizing Officer for Chief Officer of Flag and
former Director of the Corporation).
F. THE ISSUE OF CONSENT.
Informed consent means a voluntary decision after sufficient
explanation and disclosure that the person has at least a
general understanding of the medically acceptable alternatives to
make a knowing health care decision without coercion or undue
influence." In this case it should be viewed in the context of
Lisa's 18-year sojourn with Scientology procedures which over the
course of the year proceeding her death had failed her.
Despite expending large sums of money, she had mental and
emotional difficulties throughout the year of her death
resulting in a mild "psychotic episode" in the summer of 1995.
This was followed by a declaration that she had finally reached
her goal of Clear, and therefore by Scientology definition
should have had no more "engrams" that could be "restimulated" to
cause the "psychotic break" that she subsequently experienced.
She had spent over twenty thousand dollars on courses and
auditing over that summer alone, and despite financial
difficulties and diminishing productivity at her job, had
committed herself to
54 See definitions contained in F.S. §765.101 (1998).
29
another $10,000 to reach even higher levels. After August of
1995, however, she did not pursue these courses or pay the
additional monies to which she had obligated herself and in fact
did not use up the auditing services that she had already
prepaid for. She contacted her mother (who was not a
scientologist) that fall and told a lifelong, non-scientologist
friend that she was coming home to Texas for Christmas and
staying for good Ss
Her conduct at the time of the accident (at least prior to the
arrival of her fellow Scientologists) at best suggested
ambivalence. She indicated she wanted people to think she was
crazy because she wanted help. She referred to herself variously
as a bad person, having bad thoughts, who had taken "her eyes
off the object" and was tired and wanted help. She agreed to go
with paramedics to Morton Plant Hospital for evaluation.
The defendant suggests that McPherson wanted, requested and
consented to the treatment (and presumably the abuse and neglect
which have been alleged). The sole apparent basis for these
assertions, other than Lisa's history as a Scicntologist, is the
note in hospital records by attending physician Flynn Lovett
that Lisa did not want to stay at the hospital and that the
Scientologists had agreed to take care of Lisa and give her the
kind of care "she wanted." The defense then suggests, without
supporting detail, that Lisa made a specific and affirmative
request for "spiritual treatment" by Scientolgists and then
attempts to equate this presumed "request" as justification for
the forced use of medication, injections, herbal remedies and
prescription medicines on an incompetent and resisting patient.
This "consenting" patient had been housed by them in a room
without access to family or the outside world for seventeen days
when she died as a result of her, immobility and --deh-__.-. _ .
_
Consent is largely irrelevant to both charged crimes. No one can
by consent grant permission to another to engage in the practice
of medicine as that authority can only be conferred by licensing
authorities. Similarly, a disabled adult cannot, by "consenting"
to or
" Transcript of Kelly Davis statement.
30
acquiescing in abuse or culpably negligent conduct that causes
death or great bodily harm, eliminate the criminal consequences
for the abuser. See, e.g.. In Sientarecki v. State, 724 So.2d 626
(Fla. 4" DCA 1998), review granted by Sieniarecki v. State, 729
So.2d 394 (Fla. 1999). More importantly however, the credible
testimony does not support the suggestion of consent. ?'he actual
statement of Lisa to hospital officials was simply that she did
not want to stay and wanted to leave with her friends from the
congregation. According to Judy Gsoldsbeny-Weber site indicated
only that she found the noise and confusion and the doctors
"poking" her bothersome and wanted to go someplace quiet. Initial
oral and taped statements to police by Janis Johnson and Alain
Kattuzinski (the two corporate employees most involved in Lisa's
care) indicated that Lisa had not consented to or requested any
procedures or medication, and that since it would violate
Scientology principles to provide such treatment without
informed consent, none were planned. Indeed as late as February
1997 this continued to be the official position of the CSFSO. A
February 22, 1997 letter from attorney Sandy Weinberg,who
represents the CSFSO in both the civil and criniiriil
proceedings, responded to police inquiries by stating: You have
also asked for the person who was in charge of Lisa's stay at the
hotel in November and early December. Lisa was not at the hold
for services and therefore there was no auditor or case
supervisor from the Church in charge. However, Alain Kartuzinski
and Jams Johnson periodically received information on her
status.[emphasis supplied] In October of 1998, nearly three years
after his initial statements to the police and only after being
granted immunity, Alain Kartuzinksi has now changed his
testimony. He admits that he did not discuss with Lisa the
possibility.of Lisa going back to her own residence but simply
asked her if he could drive her to the Fort Harrison. After Lisa
was taken directly to a room in the Cabana area, Kartttzinski
had a brief visit with her at the room at which time the
following conversation allegedly occurred:
Lisa was sitting on the bed. She was looking maybe a little
better actually at that point, so I sat down at the other side
of the bed. I said that we-we would be doing some auditing and
that-is that all right with her and she said, "Yes," and I said,
you know." It would be nice if
you just rested and ate some good meals, took your vitamins in
preparation for this auditing," and she said, "Okay, I'll do
that."' At the time of this alleged conversation Kartuzinski had
not yet decided what type or how much auditing needed to be done
and had no specific discussions with her about specific
procedures, medication, the circumstances or length of her stay
at the Fort Harrison or the potential cost she would be facing.
Moreover, by Kartuzinski's own admission, Lisa's condition at the
time of this conversation was markedly different from her
deiirious and psychotic state a few days later. '1'lterefore, the
possible treatments and alternatives that Lisa faced once she
became delusional and dangerous to herself and others were not
the same as she had faced at Morton Plant or the first day of her
stay when Kartuzinski alleges he spoke with her. The informed
decision she would have faced would have been markedly different
as she continued to deteriorate in the defendant's exclusive
care. After seventeen days of nightmarish failure of the CSFSO's
diagnostic and treatment decisions, in which she had lost 20-40
pounds, become severely dehydrated, and developed abrasions and
bruises over much of her body, it is unlikely that a rational
person would have decided to continue this course. Since no
licensed medical doctor ever saw Lisa, and she was not medically
evaluated once she became extremely symptomatic, none of her
caretakers would have been in a position to explain the
alternatives to her. Of course, no one attempted to do so, nor
was any informed consent to any of these procedures ever
acquired.
The overwhehning evidence, however, indicates that within 48
hours of her arrival at the Fort Harrison and throughout her
stay in the hands of the defendant corporation she so markedly
deteriorated that she was incapable of coherently discussing her
own needs or of caring for herself or of giving consent to any
treatment procedure. The persons who gave injections to Lisa,
forced medication down her throat with an irrigation syringe,
and mixed herbal remedies and other medications in milkshakes
did not inform Lisa of the nature and purpose of the substances
she was ingesting or attempt to get her consent at least in part
because they felt she was incapable of coherent communication.
Kartuzinski Sworn Statement October 13, 1998, at page 72.
32
Over the course of the seventeen days of her stay at the Fort
Harrison, Lisa's conduct was anything but cooperative as she
descended quickly (if the caretakers are to be believed) into
disorientation and auditory and visual hallucinations, repeatedly
tried to walk out of the room, fought - spmetimes violently -
with her caretakers requiring security guards to be posted at her
door, rarely slept, refused to eat or drink on any consistent
basis, would not voluntarily take medications given her, was
held down while unauthorized injections were administered, held
down on three occasions while a concoction of prescription drugs
and aspirin were injected down her throat by an unlicensed
dentist, frequently cursed her caretakers, and also accused them
of trying to kill her. Lamps, mirrors and phones were removed
from her room.
The condition of her body was a poignant testament to the
difficulty of her fma1 days: she had bruises, inflicted by her
own conduct or the restraint imposed by her "caretakers"
(sometimes accomplished barehanded other times done with a towel
to get a better grip), over her extremities and trunk and
abrasions, some resembling insect bites, over her hands wrists
ankles and feet. Her eyes were sunken as a result of
dehydration, her body thinned by weight and water loss. Dried
material was caked on her teeth. Even her fellow Scientologists
have referred to the visual condition of her body as "shocking
and unbelievable" and "horrific."
During Lisa's stay she slept sufficiently to perform auditing on
only one occasion and when it was attempted Lisa responded by
licking the e-meter then throwing it. No other auditing
"treatment" or use of Scientology "technology" was attempted
throughout her stay. The defendant was equally unsuccessful in
its attempts to gain Lisa's cooperation in taking medications,
vitamins, herbal remedies and other drugs, and in eating,
drinking and sleeping.
For instance, Teresa Cezare, an Argentinean national who was an
employee of the defendant, watched after Lisa on the 24'° and
28'° of November. Teresa testified that on both occasions Lisa
refused to eat or drink and was spitting out food and fluids. She
deteriorated from the first visit to the second and had
developed more bruises ("violet") on her body.
33
Cezare indicates she had been told by security guards that Lisa
likes to try to leave the room and to not let her do so. On two
to three occasions when she was there, Lisa tried to leave and
indicated that she wanted to go (she was not fully clothed), but
did not indicate that she wanted to go "hopte." Lisa resisted
Cezare's efforts to return her to the room and Cezare had to hold
Lisa by the shoulders and guide her back in and sit her in a
chairs' Similarly, Lisa tried to walk out twice on Security Guard
Sam Ghiora when he was posted to the front door of the room. On
the first occasion, as she started to walk out the door Chiora
.pointed to direct her back inside; she initially said that he
wasn't CMO (a corporate/church office) and could not tell her
what to do and then, referring to him by name said she didn't
understand what was happening and for him to please help her." In
a second incident, Lisa walked to the door where Ghiora was
stationed and attempted first to knee him in the groin and then
poke him in the eye. Ghiora states she was not coherent at the
time 59 Other caretakers also report attempts by Lisa to walk
out the door or break the window in the room.6°
Clearly Lisa was also not cooperative in taking medicine or in
eating or drinking the food and fluids she was offered by her
caretakers. After the first few days, Houghton's involvement was
precipitated by the fact that he knew how to make uncooperative
subjects swallow medication by using a syringe to put the
substance far enough down the throat that swallowing became
reflexive. Initial medications were sought in liquid or
intramuscular form so they would be able administer them
effectively. The caretaker notes and testirnonies are replete
with indications that Lisa spit out vitamins, medicine, food and
fluids. Although
n Sworn Statement of Teresa Cezare , May 1997 at pages 28-31. S3
Sworn Statement of Sam Ghiora May 1997, at page 12. 5' Id. at
page 22.
"° See, e.g., Sworn Statement of Sylvia DelaVega at page 17;
Sworn Statement of Valerie tDemange at pages 85, 92. Statement
of Heather Petzold (Hoff) at page 17. Statement of Laura Arrunada
at pagel9.
34
her behavior was erratic, it is clear that after the first few
days she never had a complete meal and was not eating and
drinking enough to sustain life."
For instapce, Emma Schamerhorn, who personally cared for Lisa
early in her stay before being replaced by Janis Johnson,
testified that the most fluid she took in while she was with her
was a few swallows of protein shake and couple of swallows of
water. Sate rald not think Lisa had more than 2-4 ounces of
fluids during the periods that she was on watch; the most Emma
ever saw her eat at one time was a banana. Emma agreed that Lisa
was not eating and drinking enough to keep her alive in the long
run.' Similarly, Heather Petzold, who cared for Lisa the second
half of her stay, was beginning to get franticb3 about the
situation in early December and noticed Lisa's rapid physical
decline over the last several days of her life`" Although she
didn't believe Lisa needed to go to the hospital, Petzold
nonetheless wrote reports around the first or second of December
that "she (Lisa) was continuing to scream, you know just things
over and over. She's defecating on the bed. She's - she doesn't
walk around as much she is sleeping less. She - we tried to give
her protein drinks, we tried to give her like eggs, whatever we
could give her, and I haven't been able to succeed. We need to
change something."65 Petzold's reports have been lost or
destroyed by the corporation, as have all caretaker notes for
the last two days of Lisa's life. Petzold testified that she
didn't believe there was any day where Lisa was fed and ate
sufficiently.'
61 Because the caretaker notes are not complete and the
recollections and testimonies of caretakers are limited in
detail it is difficult to precisely reconstruct the exact amount
of fluids and food which Lisa consumed during her 17 day "stay"
at the Ft. Harrison.
6'Sworn Statement of Emma Schamerhom at pages 102-106. 6' Sworn
Statement of Heather Petzold at page 47. Sworn Statement of
Heather Petzold at page 42. Sworn Statement Heather Petzoid at
pages 33-35. "s Id. at page 44.
35
Lisa's continued resistance was also manifested by the number of
times she was restrained and attacked or tried to harm her
caretakers. Testimony suggested that Lisa was violent for periods
of up to two hours at a time, and had to be held down for
periods of thirty minutes, forty five minutes and up to an hour
" She attempted to slap, gouge, kick and strike her caretakers,
struck one on the arm, gave another a black eye and accused
others of wanting to kill her." She was held down while trying
to iteep her quiet, while trying to take her temperature, while
trying to medicate her orally, and while giving leer
injections.'
Janis Johnson has suggested in her taped statement to police in
May of 1996, in the presence of corporation counsel Bob Johnson,
that it was Lisa who wanted to go to New Port Richey for medical
help instead of Morton Plant. Ms. Johnson admitted that it was
apparent to her from Lisa's skin and sunken eyes that she was
"majorly" dehydrated. In addition, she apparently believed Lisa
to be suffering from such a massive systemic infection that her
capillaries had burst causing petechial hemorrhages on her arms
and legs. Nonetheless, she claimed that Lisa was conscious and
coherent and wished to be taken to New Port Richey to Minkoff -
to someone who would treat her with respect. Moreover, Johnson
suggested that Lisa had not been mentally ill during her stay,
but just a little stressed out. She described Lisa as "with it"
and just there for "rest and relaxation."
These characterizations were patently false; the severity of
Lisa's medical condition as demonstrated by the forensic
evidence indicate she was incapable of coherent conversation and
essentially unconscious at the time she allegedly had this
conversation. Paul Greenfield, who assisted in carrying Lisa to
the van and transporting her to the hospital, testified that
°' Statement of Heather Petzold.
"' See caretaker note 00154 for Saturday December 2, indicating
that Lisa thought caretakers were "psyches or other enemies who
wanted to kill her. "Statement of Valerie DeMange at pages 43;
85. Statement of Patricia Stracener at pages 24-25. Statement of
Alice Vongrondelle at page 21. Statement of Barbro Wennberg at
pages 15, 33. Statement of Rita Boykin at page 84.
6' Statement of Demange at page 43. Statement of Stracener at
pages 24-25. Statement of DeLaVega at page 29.Statement of
Houghton at pages 55, 143, 175 . Statement of Schamerhom at
pages 29, 50-51 and second Statement at page 90. Statement of
Wennberg at page 52.
36
although her eyes were open she was motionless and
uncommunicative for the entire period he saw her. She never
spoke to him, acknowledged his presence, or made any voluntary
movement of any kind. Her breathing was labored even before the
trip began.
Based upon Lisa's bizarre and delusional behavior, every
caretaker with the exception of Johnson has described Lisa as
incoherent and incapable of making decisions about her welfare.
For instance, Leslie Woodcraft testified that Lisa seemed
incapable of making decisions,'o and David Houghton indicated
that Lisa was not competent to make decisions on medication or to
make even the most basic decisions of whether to see a doctor."
Rita Boykin indicated that Lisa only spoke incoherently and that
she did not attempt to communicate with her because she did not
believe her to be capable of giving a coherent response."
Heather Petzold testified that she never had a coherent "comet
cycle" with Lisa except for a single occasion on a single day
when Lisa asked her name."
Finally, after being granted immunity, Kartuzinski testified
under oath that Lisa never asked for any of the medications or
other remedies used on her. He acknowledged that it was clear
after the first day that Lisa was unable to function by herself,
had serious mental problems, and was incapacitated as far as
handling day to day living, including being unable to make
decisions about her own welfare '° Additionally, Kartuzinski
testified that he and Janis called Minkoff together before
deciding to take her to the hospital in New Port Richey. He is
unaware of any discussion with Lisa about where to take her and
does not believe she
'° Sworn Statement at page 29. " Sworn Statement at page
169. '2 Sworn Statement at page 21.
n Sworn Statement at page 91. See, also Sworn Statement of Alice
Vangrondelle (second statement, April 9, 1998) at page 13. '°
Sworn Statement at pages169-170.
37
was competent to discuss this. Janis never related that she had
such a conversation with Lisa. He states that he made the
decision for her to go to the Pasco hospital."
G. SCIENTOLOGY PRINCIPLES. The Courtih not bound to accept
self-serving statements of the defendant as to either what its
practices are or which of its practices are "religious" in
nature. A defendant cannot immunize itself from criminal
responsibility by merely attaching the word "religion" to its
activities, nor, by blending references to religion into its
activities, can it change essentially commercial or secular
undertakings into religious ones or expand the rights of
religious protection to such non-religious matters. Tony & Susan
Alamo Foundation v. Sec. of Labor, 471 U.S. 290, 105 S.Ct. 1953,
85 L.Ed.2d 278 (1985) (Religious foundation which engages in
commercial enterprises which include service stations, retail
businesses, hog farms, construction companies, a motel, and a
candy manufacturer is subject to the provisions of the Fair
Labor Standards Act, even where foundation claims all of its
activities are a part of its religious mission and foundation's
employees claim not to want the protections of the Act).
In United States v. Bauer, 84 F. 3d 1549 (9th Cir.1996),
defendants, Rastafarians, were convicted of conspiracy to
manufacture and distribute marijuana, distribution of marijuana,
possession of marijuana, and various related charges. The
defendants appealed. The Court of Appeals held, inter alia, that
the federal Religious Freedom Restoration Act was no defense to
conspiracy and money laundering charges. The Court observed: It
is not enough in order to enjoy the protections of the Religious
Freedom Restoration Act to claim the name of a religion as a
protective cloak. Neither the government nor the court has to
accept the defendants' mere say-so. The court may conduct a
preliminary hearing in which the defendants will have the
obligation of showing that they are in fact Rastafarians and
that the use of marijuana is part of the religious practice of
Rastafarians.
The principle has also been uniformly applied in situations not
involving drug laws. In People v. Hodges, 10 Ca1.AppAth Supp.
20, 13 Ca1.Rptr.2d 412 (Ca1.App. 1992), a pastor and assistant
pastor, who were also president and principal of church school,
were convicted of violating a statute requiring child care
custodians to report known or suspected
n Id. at pages 160.161.
38
instances of child abuse to the state's child protective agency:
The pastors wanted to "handle the matter within the church" in
derogation of the law and asserted their First Amendment rights.
The Superior Court upheld the conviction, and stated:
Although a determination of what is "religious" belief or
practice entitled to constitutional protection may present a
most delicate question, the very concept of ordered liberty
precludes allowing every person to make his or her own standards
on matters of conduct in which society as a whole has important
interests. (Wisconsin v. Yoder (1972) 406 U.S. 205, 92 S.Ct.
1526, 32 L.Ed.2d 15.)....[Alppellants claim the school is an
integral part of their church ministry and to comply with the
reporting statute would threaten substantial impairment of the
exercise of the Pentecostal faith ....The statute in no way
infringes on appellants' religious practice when they are acting
solely in the capacity of pastors. However, when, as here, a
student seeks assistance from them as administrators of the
school, their obligation under the statute arises. While the
distinction between the two positions may not always be clear,
given the compelling state interest served by the Reporting Act,
if the information comes to a teacher/principal/clergyman in any
way through the school setting, reporting is mandatory. The
compelling state interest furthered by the reporting statute,
protecting children from child abuse, justifies any burden on
appellants' religious practice ....The State may justify an
inroad on religious liberty by showing it is the least
restrictive means of achieving some compelling state interest
....[Ilf appellants are held to be exempt from the mandatory
requirements of the Reporting Act, the act's purpose would be
severely undermined ....[Mere is no other less intrusive way to
satisfy the act.
Thus, this Court has jurisdiction to determine for itself for
purposes of RFRA and other defenses raised by CSFSO what the
relevant tenets of Scientology are.
Scientology has its origin in the publication of the book
Dianetics in 1951 by L. Ron Hubbard. Hubbard claimed that he had
discovered the hidden source of all psychosomatic ills and human
aberrations and that Dianetics skills had been developed for
their invariable cure. Dianetics repeatedly stressed that its
underlying theory and its techniques were "scientific." He
claimed Dianetics was an exact science, confirmed by clinical
research. He compared Dianetics with other sciences and made
repeated claims of the scientific nature of his research and
discoveries.
In Hubbard's terminology the "analytical mind" is the concious
mind, which operates flawlessly like a computer. However, it
tray direct the body in an "aberrated" manner if fed false data
by the unconscious or reactive mind. Hubbard claimed that the
source of these
39
human aberrations were "engrams," an irrational association made
by the "reactive" (unconscious) mind with an unpleasant event
that becomes "keyed in" and then "restimulated" when similar
events occur in the future. The reactive mind is a moron and is
capable only ofrecording events literally when the analytical
mind is rendered unconcious by sleep, injury, drugs, or illness.
The engram becomes keyed in by a similar event in the future and
then later becomes "restimulated" causing psychosomatic illness
or aberrant behavior.
Hubbard posited that most such engrams occurred prenatally when a
fetus, embryo or zygote was rendered "unconscious" by a blow to
the mother's abdomen (by the husband, examining doctor or during
sexual activity) and through some unexplained phenomenon the
individual cells perceived and recorded the overheard statements
as engrams. Hubbard explained that the ability of the cells to
record events begins with and even before conception. (Dianefcs
at page 187.) These engrams could be discovered and removed from
the memory of the reactive mind by the process of auditing.
Auditing entails the patient being asked a series of specified
questions while holding the grips of an e-meter, a device which
measures changes in skin conductivity. When all engrams in the
reactive mind were eliminated the person became "Clear," an
almost superhuman state in which the Clear was as superior to a
normal man as a normal man was to an insane person: As a
standard of comparison, a Clear is to the contemporary norm as
the contemporary norm is to a contemporary institutional case.
The margin is wide and it would be difficult to exaggerate it. A
Clear, for instance, has complete recall of everything that has
ever happened to him or anything he had ever studied. He does
mental computations, such as those of chess, for example, which
a normal would do in half an hour in ten or fiteen seconds. He
does not think "vocally" but spontaneously. There are no demon
circuits in his mind except those which might amuse him to set
up - and break down again - to care for various approaches to
living. He is entirely selfdetermined. And his creative
imagination is high. He can do a swift study of anything within
his intellectual capacity, which is inherent, and the study would
be the equivalent to him of a year or two of training when he
was "normal." His vigor, persistence and tenacity to life are
very much higher than anyone has thought possible."76
Hubbard, categorized Dianetics as discovering
's Dianetics, at page 242.
40
"...the exact anatomy of the human mind" The aberrative power of
the engrams was discovered. Procedures were developed for
erasing them. The amount of benefit from running half a dozen
engrams exceeded anything that man had ever been able to do for
anybody in the history of the human race."
Subsequent to Dianetics, Hubbard went on to found the religion of
Scientology of which Dianetics and auditing remained a core
part. Building on Dianetics, Hubbard claimed to have discovered
"what it was that the mind was coating" - the thetan. With
Scientology, Hubbard developed additional auditing procedures
and levels of advancement beyond "Clear" - beginning at OT-1 (OT
standing for operating thetan) and higher. The material contained
in these higher levels has not been fully disclosed to the
public.
Hubbard also developed a philosophy to explain case failures.
Hubbard indicated that all persons associated with a suppressive
person (a person who is against Scientology or against "anyone
helping anyone else") would "roller coaster" instead of making
consistent progress. Such people were classified by Hubbard as
"PTS," which stands for Potential Trouble Source, indicating the
person means potential trouble for himself and for Scientology.
Hubbard classified potential trouble sources into three
categories with the third and most disturbed type being extremely
pscyhotic. Hubbard indicated that such persons, Type Ill's, were
in need of medical evaluation as they may be suffering from a
physical illness with a known medical cause. Second, he indicated
that they could only be handled in organizations that were
equipped with hospitals since intravenous feeding and other
medical treatment of a non- brutal nature might be necessary. The
Fort Harrison was not so equipped and specific Hubbard
directives precluded the treatment of psychotics at the Fort
Harrison.
For instance, Hubbard Communications Office Bulletin 24.11.65
(Reissued in November of 1987) titled "Search and Discovery"
declares that "The Type III PTS is mostly in institutions or
would be .... All institutional cases are PTSes. The whole of
insanity is wrapped up on this one fact." "Type III [PTS] is
beyond the facilities of orgs not equipped with hospitals as
these are entirely psychotic." Hubbard indicates "medical care
of a very
41
unbrutal nature is necessary, as intravenous feeding and
soporifics (sleeping and quieting drugs) may be necessary. Such
persons are sometimes also physically ill from an illness with a
known medical cure." Apparently recognizing that this treatment
will not be universally effective, this Hubbard directive goes
on to note "But there will always be failures as the insane
sometimes withdraw into rigid unawareness as a final defense,
sometimes can't be kept alive and sometimes are too hectic and
distraught to ever become quiet. "(emphasis supplied) The
ultimate goal in "handling" potential trouble sources was to
either change the perspective of the suppressive person who was
affecting him or to completely dissociate from that person and
end the relationship.
In 1973 Hubbard introduced the "introspective rundown" an
auditing procedure for "psychotic breaks" which he referred to
as a "technical breakthough which possibly ranks with the major
discoveries of the twentieth century." The bulletin claimed that
in 1970 "the actual cause of psychosis was isolated... In the
ensuing years this has been proven beyond doubt to be totally
correct." The rundown makes no mention of potential trouble
sources or suppressive persons but indicates that psychotic
breaks are caused by introversion: "The essence of the
introspective rundown is looking for and correcting all those
things which caused the person to look inward worriedly and
wrestle with the mystery of some incorrectly designated error.
The result is continual inward looking or self- auditing without
relief or end." As can be seen by the attachments to the Reiss
affidavit, subjects are audited with an e-meter by being asked a
series of unusual questions and gauging their responses on the
meter.
As an auditing procedure, however, the introspection rundown
requires, under Scientology beliefs, that the subject have
adequate nutrition and sleep before it can be used. Thus,
Kartuzinski crow blames a lack of sleep or nutrition for the
failure of auditing to assist Lisa during her stay. It was
briefly attempted on one occasion and never tried again.
Alain Kartuzinski provided three Hubbard scriptures during his
sworn testimony which he and other CSFSO officials had knowingly
violated and which he testified were
42
applicable to Lisa McPherson's situation. These directives
prohibit the handling of psychotics at the Flag Service
Organization. Hubbard's language makes clear that acceptance of
psychotics or people with psychotic breaks is prohibited in part
because the inability to cure them may leave the organization
open "to failures." [See attachment 13.)
II. THE DEFENDANT'S CRIMINAL CONDUCT WAS NOT CONSISTENT WITH
NOR JUSTIFIED BY SCIENTOLOGY RELIGIOUS BELIEFS. The defendant
suggests that their employees' actions do not constitute a crime
because they were following Scientology beliefs, yet at the same
time suggests corporate liability is inappropriate because the
same actions were not necessitated by and were in fact
inconsistent with the tenets contained in Scientology scripture.
Since neither the local corporation nor its employees may create
or alter the religious doctrines of Scientology, the
corporation's admissions demonstrate that the defense has not
and cannot establish that the actions upon which the prosecution
is based, were justified by the religious beliefs and practices
of Scientology.
There is no constitutional or statutory right to practice
unlicensed medicine or abuse disabled adults simply because this
criminal conduct may be alleged to be a religious practice.
Therefore, the consistency of the corporation's actions with the
religious tenets of Scientology is a potential affirmative
defense only as allowed by statutes prohibiting the unlicensed
practice of medicine. It must be emphasized, however, that no
Scientology religious tenet precludes medical treatment,
evaluation or supervision of persons that are physically or
mentally ill; indeed Hubbard's writings suggest underlying
medical conditions can be the cause of apparent mental illness
and that hospital facilities, medical treatment and intravenous
feeding are a necessary part of treating someone who is
"psychotic." No religious tenet authorizes forced medication or
injections or any other procedures to which the "parishioner"
has not validly consented. Nor does any Scientology tenet
authorize unlicensed personnel to determine through diagnosis
that physical or medical causes are not responsible for
"psychotic behavior."
43
5.
Similarly, the statements of those persons involved in the
incident do not support the defendant's assertions. Janis
Johnson, for instance, the unlicensed former doctor assigned to
oversee Lisa's care, has denied that any of the above practices
would be justified by Scientology principles: The Church doesn't
treat mental illness at all... I mean she (Lisa) did the ... she
did the usual thing. If you think somebody's mentally ill, then
they go and get evaluated. You see... the point of Scientology
isn't to treat physical or mental illness .... It's not like
Christian Science where you avoid all medical treatments
or you're supposed to depend on faith to heal you or
something. That's not what's going on." Johnson transcript at
pages 58-59.
She further denied that diet, an exercise regimen or any form of
counseling would have been used to try to improve Lisa's mental
condition and denied knowing what an introspection rundown was."
Similarly, Judy Goldsberry - Weber, a Scientologist with a
nursing background, was very upset that Lisa was forced
medicated without doctor approval and complained to CSFSO
authorities about it. She obviously did not consider Lisa's
treatment mandated by Church doctrine and questioned why it was
allowed to continue, indicating she would have been screaming to
Dr. Minkoff for heavier sedation and "IV's." She further stated
she had taken people to Morton Plant on many occasions and would
have taken Lisa there rather than New Port Richey.
Employees and other Scientologists also acknowledged that forcing
services on a non consenting parishioner violates Scientology
doctrine.' David Minkoff, who is at OT-8 level Scientologist,
and was the doctor who attended Lisa's death, indicated that
policy from Hubbard's writings requires that anyone with a
mental disease must go through a physical examination. A medical
doctor needs to examine the patient and make sure that there
isn't anything that could be the cause of the problem." In his
second statement, Minkoff
T' Transcript at page 60.
'° Houghton second statement at page 148. Minkoff Second
Statement May 19, 1998 at page 68. A copy of this statement is
attached as exhibit 7.
" Minkoff Swom Statement April 20, 1997 at page 103. A copy of
this statement is attached as exhibit 6. See, Technical
Bulletins, Volume 8 at page 327 "The correct action on an insane
patient is a full searching clinical examination by a competent
medical doctor."
44
reiterated this concern, indicating that a complete physical
including x-rays and possibly an MRI should be done on any "Type
III," as Hubbard indicated and Minkoff's experience confirmed
that physical illness or injury can be the root cause of a
mental condition. Moreover, MInkQff indicated that when the
person is incompetent to consent to such procedures, the family
is consulted. Thus, a complete physical should have been done at
the outset.
Finally, all employees made clear that the giving of shots by
M.L.O. employees was not authorized and could only be permitted
by a licensed physician. In this case repeated injections were
given without patient consent and while she was being held down,
without medical authority, by unlicensed and untrained CSFSO
personnel.
III. TBE INSTANT PROSECUTION IS NOT SIMILAR TO OR AFFECTED BY
TBE PROSECUTION OF BENRY LYONS FOR HIS INDIVIDUAL CRIMINAL
ACTIVITY.
The defendant suggests that the instant charges cannot be
reconciled with the State Attorney's Office's failure to charge
the National Baptist Convention with the crimes committed by its
president, the Reverend Henry Lyons. The assertion is based on
the stated but unsubstantiated conclusion that "Lyons was the
Convention's most senior official and that the Convention
explicitly ratified and affirmed the acts of Reverend Lyons."
While there was evidence that Lyons arguably embezzled or
misappropriated a large amount of money from the Convention,
Lyons was never charged with these crimes. It was these
defalcations and only these that were ratified on behalf of the
purported victim, the NBC. The ratification by the.Convention
occurred after an inquiry by the Reverend E. V. Hill who
investigated solely whether monies from the convention itself had
been misappropriated.' The resolution plainly states that "there
have been no indications of misappropriation of convention funds
or wrongdoing on the part of Dr. Henry Lyons which would pre
empt his continued service to this convention as president."
'° Deposition of E. V. Hill in State v. Henry Lyons and
Bernice Edwards, Case No. CRC 98-03449 CFANO. December 30, 1998,
at pages 5-8. Trial Testimony of E.V. Hill, February 10, 1999, at
pages 55-63.
45
Lyons was ultimately charged with fraud against a series of
business corporations and the conversion of charitable monies
entrusted to him by the Anti-Defamation League. There was never
an allegation that the National Baptist Convention, USA, Inc.,
itself was involved in Lyons' criminll acts. Rather, the
evidence adduced during the investigation and confirmed during
trial indicated that Lyons fraudulently invoked the Convention's
name to defraud large corporations into the payment of monies
into bank accounts that he controlled but which were not revealed
to the Convention itself. These thefts were clearly motivated by
Lyons' personal greed and allowed him to support mistresses, buy
vacation homes and live a lavish lifestyle. Lyons continued to
mislead the public and the Convention as to his guilt, causing
the faithful among his followers to continue to believe in his
innocence.
In the Lyons case, the State had the opportunity through tracing
bank records and interviewing the victims of the case to
reconstruct Lyons crimes and build a case against him
individually. The unsubstantiated suggestion that the State has
intentionally avoided individual charges ignores the
difficulties the State was facing in proving individual guilt
when the only witnesses to establish the necessary facts were
paid employees of the defendant, some of whom lied to the police
and who refused to give sworn testimony without being granted
use immunity. Moreover, crucial documents had been lost or
destroyed by CSFSO and were unavailable to investigators.
The defendant's Motions incorrectly assume that evidence
admissible against the corporation must necessarily be
admissible to prove charges against individual defendants and
that proof of corporate guilt, including criminally negligent
omissions, necessarily subsumes proof beyond a reasonable doubt
as to which individual actors are criminally responsible. 46
IV. NEITHER THE FLORIDA NOR FEDERAL CONSTITUTIONS MANDATE
THE ACCOMODATION OF CRIMINAL ACTS ALLEGEDLY MOTIVATED BY A
DEFENDANT'S RELIGIOUS PRACTICES.
The First Amendment of the United States Constitution provides
that "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof." For over one
hundred years, however, the Supreme Court has distinguished
between the right to hold a religious belief, which is uniformly
sustained, and the right to engage in a religious practice or
conduct that violates the criminal law. In Reynold v. U.S., 98
U.S. (8 Otto) 145 (1878), the Court considered the issue of
whether a Mormon convicted for the federal crime of bigamy in
the Utah Territory should have been acquitted if he married a
second time because he believed it to be his religious duty.
Rejecting this proposition the Supreme Court held that religious
beliefs cannot justify the commisison of an act made criminal by
the law of the land. The Court noted: ...the only question which
remains is, whether those who make polygamy a part of their
religion are exempted from the operation of the statute. If they
are , then those who do not make polygamy part of their religious
belief may be found guilty and punished, while those who do, must
be acquitted and go free. Laws are made for the govemment of
actions, and while they camtot interfere with mere religious
beliefs and opinions, they may with practices. Suppose one
believed that human sacrifices were a necessary part of religious
worship, would it be seriously contended that the civil
government under which he lived could not interfere to prevent a
sacrifice? Or if a wife religiously contended that it was her
duty to burn herself on the funeral pile of her dead husband,
would it be beyond the power of the civil govemment to prevent
her belief into practice?... Can a man excuse his practices to
the contrary because of his religious belief? To permit this
would be to make the professed doctrines of religious belief
superior to the law of the land, and in effect to permit every
citizen to become a law unto himself. Government could exist
only in name under such circumstances ...[Wlhen the offence
consists of a positive act which is knowlingly done, it would be
dangerous to hold that the offender might escape punishment
because he religously believed that the law which he had broken
ought never have been made.°'
Two years later the Supreme Court made it clear that these
principles apply equally to a Church itself, not only the
individual adherents, and that the corporate entity could not
escape the consequences of its criminal conduct. In The Late
Corporation of the Church of
Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1
(1890), the Court upheld an
s' Reynolds v. U.S., 98 U.S.(8 Otto) 145 at 166 (1878).
47
act of Congress which, as a result of the Church's involvement in
polygamy, repealed the act incorporating the Mormon Church as a
religious corporation, abrogated its Charter and forfeited all
Church property not used for religious worship or burial. The
Court ruled that the pretense of religious belief cannot deprive
Congress of the power to prohibit polygamy and all "other open
offenses against the enlightened sentiment of mankind." Speaking
of the Church's endorsement of and practice of polygamy, the
Court stated:
One pretence for this obstinate course is, that their belief in
the practice of polygamy or in the right to indulge in it, is a
religious belief, and therefore, under the protection of the
constitutional guaranty of religious freedom. This is altogether
a sophistical plea. No doubt the Thugs of India imagined that
their belief in the right of assassination was a religious
belief, but their thinking did not make it so. The practice of
suttee by the Hindu widows may have sprung from a supposed
religious conviction. The offering of human sacrifices by our
own ancestors in Britain was no doubt sanctioned by equally
conscientious impulse. But no one, on that account, would
hestiate to brand these practices, now, as crimes against
society, and obnoxious to condemnation by the civil authority !2
These principles remain valid today. See, Potter v. Murray City,
760 F.2d 1065 (10"' Cit. 1985). A full century after its
decision in Reynolds, the Supreme Court reaffirmed that
decision's vitality in Employment Division, Department of Human
Resources v. Smith, 494 U.S. 872 (1990): Alfred Smith and Galen
Black had been fired from their jobs with a private drug
rehabilitation company and then denied State unemployment
compensation all as a result of their use of an illegal
controlled substance, peyote, in a sacramental ceremony of the
Native American Church of which they were members. On initial
remand, the Oregon Supreme Court had determined that Oregon law
contained no exemption for the religious use of peyote; the
Oregon Court had fiirther ruled, however, that the absence of
such an exemption and the resulting denial of unemployment
compensation due to misconduct violated Smith's and Black's
religious freedom. The United States Supreme Court disagreed, and
distinguished prior cases which had dealt with hybrid claims
involving freedom of religion and other constitutional rights
arising out of the denial of unemployment claims. The Court noted
that it had never held as Smith and Black urged that "when
otherwise prohibitable conduct is accompanied by religious
convictions, not only the convictions but the
32 Late Corporation, supra at page 49.
48
conduct must be free of governmental regulation." Rejecting this
argument, the majority, quoting the Reynolds decision, ruled: We
have never held that an individual's religious beliefs excuse him
from compliance with an otherwise valid law prohibiting conduct
that the State is free to regulate. On the contrary, the record
of.more than a century of free exercise jurisprudence
contradicts that proposition. As described succinctly by Justice
Frankfurter in Minersville School Dist. Bd. Of Ed. V. Bobitis,
310 U.S., 586, 594-595 (1940): 'Conscientious scruples have not,
in the course of the long struggle for religious toleration,
relieved tire individual from obedience to a general law not
aimed at the promotion or restriction of religious beliefs. The
mere possession of religious convictions which contradict the
relevant concerns of a political society does not relieve the
citizen from the discharge of political responsibilities
(footnote omitted).' We first had occasion to assert that
principle in Reynolds v. United States, 98 U.S. 145 (1879), where
we rejected the claim that the laws against polygamy could not
be constitutionally applied to those whose religion commanded
the practice. 'Caws,' we said 'are made for the government of
actions, and while they cannot interfere with mere religious
belief and opinions, they may with practices... Can a man excuse
his practices to the contrary because of his religious belief!
To permit this would be to make the professed doctrines of
religious belief superior to the law of the land, and in effect
to permit every citizen to become a law unto himself.'°'
The Court also noted that it had never used the compelling state
interest test to invalidate a state law with an across the board
criminal prohibition on a particular form of conduct. It held
that such an approach would be unsound and would conflict with
the vast majority of its free exercise cases. To make the
government's ability to enforce generally applicable prohibitions
of socially harmful conduct depend on "measuring its effects on
a religious objectors spiritual development" or to make his
obligation to obey such a law contingent upon the law's
"coincidence with his beliefs" would contradict "both
constitutional tradition and common sense." Use of the compelling
government interest requirement, as the Court had in the past
when evaluating racial discrimination or restrictions on free
speech, was not "remotely" comparable to the evaluating such
general laws of neutral application. "What it [the compelling
state interest test] produces in those other fields - equality of
treatment and an unrestricted flow of contending speech - are
constitutional norms; what it would produce here - a private
right to ignore generally applicable laws - is a constitutional
anomaly."
° Smith, supra., at 879.
49
The majority ruled that because our country's diversity of belief
and the value placed upon or that religious divergence, society
could not afford the luxury of deeming presumptively invalid
every regulation of conduct that does not protect an interest of
the highest order. Such a rule the Court said:
Would open the prospect of constitutionally required religious
exemptions from civic obligations of almost every conceivable-
ranging from compulsory military service, ew, e.g., Gillette v.
United States, 401 U.S. 437 (1971); to the payment of taxes,
see,e.g., United States v. Lee, supra; to health and safety
regulation such as manslaughter and child neglect laws, see,
e.g., Funkhouser v. State, 763 P.2d 695 (Okla. Crim.App. 1988);
compulsory vacination laws, seM, e.g., Cude v. State, 237 Ark.
927, 377 S.W. 2d 816 (1964); drug laws, see, e.g., Olsen v. Drug
Engorecment Administration, 279 U.S. App. D.C. 1, 878 F. 2d 1458
(1989); traffic laws, sM, Cox v. New Hampshire, 312 U.S. 569
(1941); social welfare legislation such as minimum wage laws, sM,
Tony and Susan Alamo Foundation v. Secretary of labor, 471 U.S.
290 (1985); child labor laws, seM, Prince v. Massachusetts, 321
U.S. 158 (1944); animal cruelty laws, see, e.g., Church of the
Lukumi Babalu Aye Inc., v. City of Hialeah, 723 F.Supp. 1467
(S.D. Fla. 1989), cf., State v. Massey, 229 N.C. 734, 51 S.E. 2d
179, appeal dism'd, 336 U.S. 942 (1949); environmental protection
laws, see, United States v. Little, 638 F.Supp. 337 (D.C.Mont.
1986); end laws providing for equality of opportunity for the
races, see, e.g., Bob Jones University v. United States, 461 U.S.
574, 603-6G4 (1983). The First Amendment's protection of
religious liberty does not require this."
The Court noted that a number of states had made exceptions to
their drug laws for the sacramental use of peyote. To say that
such an exemption may be permitted, however, the Court said, is
not to say it is constitutionally required: It may fairly be said
that leaving accomodation to the political process will place at
a relative disadvantage those religious practices that are not
widely engaged in; but that unavoidable consequence of democratic
government must be preferrred to a system in which each
conscience is a law unto itself or in which judges weigh the
social importance of all laws against the centrality of religious
beliefs."
Allegations by the defendant that criminal charges against it, as
a "church," are "virtually unprecedented in the history of the
United States" is disingenuous at best. Moreover, the defendant's
elaboration on this assertion, that "Indeed, with one minor and
illchosen exception, in no reported case was a church even
charged with a criminal offense" is inaccurate and misleading in
its present context. So, too, is the defendant's claim that "The
°" Id., at 888
85 Id., at 890
50
historical fact that in no reported case has a church in this
country ever been criminally convicted stands as irrefutable
evidence that such prosecutions are not necessary to protect the
State's interest in enforcing its criminal laws."
CSFSO ignores certain obvious historical facts. The seminal case
of Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878), for
example, was one of several criminal prosecutions of Mormon
bigamists by the United States Government in the Territory of
Utah, in a process that ultimately led to the complete
dissolution of the corporation under which the Mormons operated,
and the seizure of corporate property by Federal officials
operating under the auspices of the United States Attorney
General. The Late Corporation of the Church of Jesus Christ of
Latter-Day Saints v. United States, 136 U.S. 1 (1890). While not
technically a prosecution, the Federal Government's dissolution
of the Mormon church and decision to proceed by information to
forfeit church property far exceeded in scope and effect the
current effort by the State of Florida to hold the defendant
responsible for the unlicensed practice of medicine on, and
abuse and/or neglect of Ms. Lisa McPherson, a disabled adult.
In limiting its language to the history of the United States the
defendant has intentionally chosen its words carefully. Its
counterpart, the Church of Scientology of Toronto, Inc., was in
recent years tried for and convicted of breach of trust, fraud
and other crimes in Canada. Regina v. Church of Scientology of
Toronto, et al. (1997] 116 C.C.R. 1. The Toronto case is
particularly telling as to the authority of a democratic state
to prosecute a corporate "church" for violations of criminal
laws. The Church of Scientology of Toronto had argued that
corporate liability was inappropriately applied to a religious
non-profit corporation and that the right to religious freedom
under the Canadian Charter of Rights prohibited prosecution of a
religious corporation. Applying the Canadian equivalent of
"strict scrutiny" analysis, the Canadian Court rejected the
claims and upheld the corporation's conviction.
51
was held in the county jail in default of payment. He sought
release by virtue of a statute enacted a month after his
conviction which provided relief to indigent persons indefinitely
confined for failure to pay a fine in a criminal case. The Court
granted relief, ruling that application of ftpew statute was not
precluded by (then) Article III, section 32 because the new
statute did not in any way affect the State's ability to
prosecute or punish aggravated assault:
We do not discover, nor is there, in the act of of May. 25, 1891,
anything which purports to repeal or amend the act of 1881. Any
offense committed under the act of 1881 prior to the approval of
the latter act, or even sugsequent to it, can be prosecuted and
punished in the same manner as could be had the act of 1891
never been enacted. The offenses defined or created by the former
act, and the punishment demanded against any of them by it, are
in no wise changed or affected by the act of 1891; and a court
would look in vain to the latter act to find in it anything
changing either the nature of the offense created, or even the
character or degree of the punishment authorized by the act of
1881. In so far as the act of 1881 authorizes the prosecution or
punishment of any person, it is not affected by the act of 1891.
The same punishment may be inflicted, and the same form of
sentence is to be entered, as before the approval of the latter
act. The form of sentence which has been used in this case is
that ordinarily used. In addition to judgment that the
petitioner pay the fine and costs, it orders that the sheriff
'keep him in custody until the judgment of the court is complied
with.' This order as to custody is not part of the punishment
authorized by the act of 1881,. lemphasis supplied] Thus, the
Court ruled that the 1891 act had no effect on the prosecution or
punishment of the defendant under the pre-existing statute. It's
only effect was on additional language in the sentence relating
to imprisonment for failing to pay the fine, language which was
not authorized under the 1881 Act.'
Consistent with Ex parse Pells, Florida Courts have held that
retrospective application of a separate and superficially
unrelated enactment would violate this provision if the later act
°9 Relying on kx parse Pells, the Supreme Court in State v.
Watts, 558 So.2d 994 (Fla. 1990), found that a 1985 amendment of
the youthful offender statute (Section 958.14) changing the
sentence that could be imposed upon revocation of community
control could be applied where the conduct constituting the
violation occurred after the statute's enactment. The Court
noted that the change was to a statute different from that
defining the crime or the initial punislunem and which had no
direct connection to either. Quoting from E_r pane Pells, the
Court ruled that the statutory change in no way affected
prosecution or punishment for any previously committed crime,
holding that "an offense committed prior to or subsequent to the
1985 amendment can be prosecuted and punished in the same manner
as it could be had the ' 1985 amendment' never been enacted."
Subsequently, however, in Arnette v. State, 604 So.2d 482 (Fla.
1992), the Court revisited this amendment and ruled that the
statute did not in fact change the sentence which could be
imposed on a violation and was simply a clarification of the
legislature's prior intent that defendants sentenced as youthful
offenders retain their status even if convicted of community
control violations.
55
affected the prosecution or punishment for a previously committe