Keith Henson Hemet trial transcript, pages 001-050

Go to next part of transcript
Back to index



THE COURT: Good morning.

MR. SCHWARZ: Good morning, your Honor.

MR. HARR: Good morning.

THE COURT: This was just handed to me. Let me just take a look at it, please. All right. Mr. Schwarz, on the motion for reconsideration you wish to be heard?

MR. SCHWARZ: Yes, your Honor, I do. Thank you. Your Honor, the People are in receipt of the Court's ruling with respect to fair game. That was given to us on Monday.

THE COURT: Just this past Monday?

MR. SCHWARZ: The previous Monday, your Honor.


MR. SCHWARZ: It appears that the Court -- and that's the reason for, the purpose for the motion for reconsideration or clarification -- is stating that as long as the People don't intend to introduce the beliefs of the Scientologists or the beliefs of the victims, then there will be no evidence of fair game. That's how the People understand it by the last sentence that states, "The Court will reconsider and grant the motion if the People will not introduce the religious beliefs of the victims."

THE COURT: Well, perhaps the Court is unclear to a certain extent. What the Court intended by it, by its ruling was that if the People are not going to introduce the fact that the victims are members of the Scientology Church, then the fair game will not be permitted. The Court will grant the motion. If, on the other hand, the People intend to introduce the fact that the victims are Scientologists or members of the Scientology Church, then the Court will consider under those rigid restrictions whether or not to allow the doctrine of fair game to be introduced.

MR. SCHWARZ: Well, your Honor, then thank you for the Court's clarification.

THE COURT: Do you understand it now?

MR. SCHWARZ: I understand it. And may I repeat it to the Court to see if I understand?


MR. SCHWARZ: So the Court is indicating that if the People do not even mention membership, then fair game is out regardless?

THE COURT: That's right.

MR. SCHWARZ: Okay. As opposed to rigid religious beliefs?

THE COURT: Perhaps the word "belief" was a little confusing. I would agree.

MR. SCHWARZ: Because your Honor, the reason why the People are somewhat concerned, I'm sure the Court's read and considered the motion for reconsideration, the Count Three is a hate crime under Penal Code Section 422.6, that it's alleged that Mr. Henson in fact thwarted the people's -- or the victims' ability to practice their religion, your Honor. And the postings themselves are replete with references to "Golden Era." And in this valley it's well-known that Golden Era is basically a Scientology complex. And the people that work in it happen to be Scientologists. And in fact, since this is, in fact, a hate crime, it would be very difficult and unworkable for us to -- because it is a necessary element, your Honor, to be able to prove that they are, in fact, being targeted based on their religion, religious beliefs. It would be much akin to this, your Honor. In California as well as the federal courts -- or under federal law the Fair Housing or Fair Employment Act you can't discriminate against someone based on their religious beliefs, or their color, or their creed, or whatever the whatnot. If a plaintiff brought an action that stated that, "Well, I was discriminated against because I'm Catholic," or "I'm Jewish," then for the Court to bar that ability to say that, well, how do you prove that, that in fact that's the motive for the discrimination? In this particular case under Count Three specifically the People have the burden of proof that, in fact, Mr. Henson was doing the acts that he was doing, essentially a hate crime, based on the fact that they were Scientologists. So the mere mention of being a Scientologist, your Honor, shouldn't carry that weight, because the People have no intention to say, "Well, Victim Scientologist, tell me what your religious beliefs are." "Those beliefs are we're honest or good," or whatever the case may be. Or if we had a Christian or Jewish person, "Tell me your religious codes" to bolster their credibility. The People have no intention to bolster their credibility based on religious beliefs. The People agree that 90 percent of the people claim some affiliation, even if it is atheism. The simple fact that you are a member of a religious order, or a religion for that matter, doesn't thereby grant you instant credibility, your Honor. And I don't think that 789 was written in such a way, because we -- we charge hate crimes all the time, your Honor. I mean, for instance, in my motion for reconsideration' we talked about the synagogue, you know, we have desecrated synagogues all the time. In fact, in L.A. there were children that were shot because of their religious beliefs. In order for the prosecutor to be able to in fact prosecute that case effectively under the hate crime statute, their religious affiliation is a necessary element of the crime. There's no other way to prove that element. So it would be virtually unworkable for us to do that. So I want to assure the Court that the People have no intention of eliciting the fact to sway the jury in any which way, only for the mere fact that they are Scientologists, your Honor. And I think 789 permits us to do so, or this would have been taken up in some other -- the hate crime statutes would be in opposition. There would be no way to do that. And I can tell you from my experience, your Honor, this is the first time this has ever really come up, because simply stating that you're a Catholic, or simply stating that you're Jewish, that doesn't engender any instant credibility, and normally wouldn't come up in a normal crime. But in a hate crime, your Honor, that's specifically the reason why it's there. So I would ask the Court to please, if the Court's intention by this is the clarification, please reconsider its position, because otherwise the People have no way of proving element Number Three -- or charging -- Count Three, I apologize, your Honor. And then I ask for the ability to reserve comment further if that's possible.

THE COURT: Sure. Counsel?

MR. HARR: Thank you, your Honor. I believe Counsel's accurate in saying that he's going to have to prove that Scientology is a religion, or at least that these people are practicing some kind of religion. The issue has to come up if Count Three is going to remain on the complaint. So given that, religion is an issue in the case. I think the main point I can make at this point is, the People seem to be relying primarily, at this point anyhow, on Evidence Code Section 789. My opposition that the Court just read indicates that at least in three places in the People's pleadings they deny that this is a religious practice or belief. They say that this concept, if it ever existed, died 32 years ago. We have a witness today available who was affiliated in such a way as we believe we can qualify him as an expert, and which I believe is probably on the calendar today as well as on a 402 matter. But the People are saying on the one hand this is a religious belief, religious practice, we can't get into it. But their pleadings in at least three places say it isn't a religious belief or practice, it doesn't exist. I think the best way to characterize this is that it isn't a religious belief. It might be called an intelligence practice. It might be called an encouragement to perhaps fabricate things. It is not what one would consider a religious practice. Basically, if I can cut right to the chase, the purpose, if it exists, is to destroy the person who is the focus of the attack. That goes to the heart of what the trial process is all about.

THE COURT: Counsel, you brought that up the other day, and the Court is well aware of your argument. The concern the Court has, and I -- I do want to think about this for awhile, and I am going to take it under submission. But let me tell you the Court's concern. Every issue concerning any religion can be arguable as to whether or not it is a religious tenet or whether it's a practice, irrespective of the religion and irrespective of the particular item in question. So I think that if we allow that argument to go any further, we're going to get into that, to the question of whether or not it's a religion -- it is a religious practice. And the minute we ask that question I think we are violating -- you don't have to shake your head, Counsel.

MR. SCHWARZ: Sorry, I apologize.

THE COURT: I'll make my decision whether you agree or not.

MR. SCHWARZ: Absolutely, your Honor.

THE COURT: I think the minute we get into that issue we are smack in the middle of discussing -- of 789. And I think that that bodes against it. That being said, I'm not sure that I'm going to re -- I mean, I will reconsider. And I will take it under submission. I'll think about it today. Incidentally, in that regard let me say, the Court has to be in Riverside on Thursday morning. So I have called -- tomorrow morning. I have called the jury for Thursday morning. So that gives us today and tomorrow afternoon to get' through our motions if we need it. If not, I've already ordered the jury for 9:00 o'clock on Thursday. So that's when we anticipate starting the trial. Is there any reason why we can't do that?

MR. SCHWARZ: I understand, your Honor, that his Honor is going to be out Thursday afternoon; is that correct?

THE COURT: No. I'm out tomorrow morning. I will be in Riverside. I have to sit in Riverside tomorrow morning. I have a hearing in the morning there. But I will be back here in the afternoon. So that if we have anything left to discuss after today we can conclude it, any motions or any hearings.

MR. SCHWARZ: That's fine, your Honor.

THE COURT: Okay? And then we'll take the matter under submission. Does that create a problem for anybody?

MR. SCHWARZ: Not for the People, your Honor.

THE COURT: Mr. Harr, anything else?

MR. HARR: Just that -- if I might?


MR. HARR: The People basically say it's not a religious practice or belief. The defendant says it's not a religious practice or belief. Therefore, if both parties agree that it is not a religious practice or belief to the extent --

THE COURT: What is not --

MR. HARR: Fair game. The fair game doctrine.


MR. HARR: To the extent that both parties agree that it is not a religious belief or practice, seems to me the door's wide open to let it in because both parties agree to that. The part that the defendant is trying to prove is that some background process is taking place that could very possibly, very probably skew the outcome of this trial. The People deny that that process exists. And I think for that reason that it's open to admissibility on this issue. And I believe that if we can qualify an expert to show that, that that would be helpful information to the trier of fact.

THE COURT: Possibly.

MR. HARR: Thank you, your Honor.

THE COURT: Thank you. All right. Counsel?

MR. SCHWARZ: I think, and with all due respect to Counsel, I think Counsel is confusing the issue somewhat. He refers to the fact that we say that it's not a religious practice or belief, but only because it's been characterized as such. The People are -- and the only reason why the People have denied that it is a religious practice or belief -- because it's not a religious practice or belief, and it is not a tenet, nor a practice. And the only -- if the issue that Counsel is trying to get to is, "Well, they deny it, therefore we get a chance to -- we get a chance to put an expert on," that belies the fact that whether it is or it's not. Even if the People openly admit that yes, fair game is a religious practice or belief, then is the Court -- as I understand it Mr. Harr is saying that there is no -- then there is nothing for them to do. They can't cross-examine. It seems as though 789 is alive and well in opposing Counsel's mind. And he's essentially making it, because we're denying that it is a religious practice or belief, somehow 789 is waived.

THE COURT: I -- okay. I'm sorry. Go ahead.

MR. SCHWARZ: No, no, your Honor. Please, I would love the Court's --

THE COURT: Well, I don't want to get too far into this thing, because we have plowed this ground before. And I want to consider it in the quiet of my chambers as opposed to talking it out. But my concern is this, Mr. Harr. The instant we talk about anything that is part of a religion, we are getting into the issue of whether or not it can be argued under 789. And my concern is that irrespective of whether Counsel would say -- and I don't even know that Counsel knows. Certainly I'm not going to accept your statements as your knowledge. I accept it as your argument. But I don't accept it as fact. And that is that whether or not Scientology is a religion, I'm not going to take evidence on that fact. I'm going to accept it, because that's my responsibility, is to accept something, some entity, some unit that says that they are a church. That's our -- that's the nature of our system. And if the Church of Scientology, the belief of Scientology, the ethic of Scientology deems it is a religion, that's what the Court is going to accept. And therefore, to discuss any aspect of that may be, and I underline "may be" because I haven't made up my mind yet, may be a bar toward reviewing any aspect of it. Again, that being said, I intend to take evidence today. I intend to allow Counsel to introduce their expert and possibly qualify or disqualify such person as an expert. Anything?

MR. SCHWARZ: Yes, your Honor. Now that we're -- since the Court still is taking this under submission with respect to the clarification of its order under 789, then -- then we fall to the proverbial step two. The next question is that I would ask the Court to inquire specifically what the area of expertise of the --

THE COURT: I said I was going to do that, Counsel.

MR. SCHWARZ: I understand, your Honor. And the only argument --

THE COURT: Don't argue. Let's get to it now that I let you argue.


THE COURT: Okay. Now, we wanted to authenticate some writings today; did we not?

MR. SCHWARZ: Yes, your Honor, we did.

THE COURT: Internet postings; is that correct?

MR. SCHWARZ: Yes, that's correct.

THE COURT: You have two witnesses, I believe?

MR. SCHWARZ: We have two witnesses, your Honor, and deposition, certified copies of deposition and trial transcripts, self-authenticating, your Honor.

THE COURT: All right. Let's begin.

MR. SCHWARZ: Your Honor, with all due respect, I don't know that all of the exhibits have been labeled by Madam Clerk. And so would the Court want to take a few minutes? Because there are 25 exhibits.

THE COURT: They can label them later. Unless you need them labeled.

MR. SCHWARZ: No, your Honor, I do not.

THE COURT: You're going to use them; aren't you, Mr. Schwarz?

MR. SCHWARZ: Yes, I am. Actually -- and -

THE COURT: Do you want them back?

MR. SCHWARZ: If the Court wants to, I have a copy of the exhibits. If the Court wants to refer to them and the Court will accept that I have an identical copy, then we won't have to go back and forth.

THE COURT: I take it Mr. Harr has copies as well?

MR. SCHWARZ: Yes, your Honor. The People intend to use the ELMO, your Honor.

THE COURT: Okay. All right, Counsel.

MR. SCHWARZ: Thank you, your Honor. The People at this stage of the proceedings, your Honor, the People would move to exclude witnesses, potential witnesses in the audience so that they -

THE COURT: Are there any potential witnesses? Sir, would you mind waiting outside? Thank you, sir. And please don't discuss the case while you're waiting. Are you a witness, ma'am?

MR. SCHWARZ: She is a potential witness. Not that she will be called, but is a possible witness. Your Honor, the People would call Deputy Rowe to the stand.

THE CLERK: Please raise your right hand. Do you solemnly state that the testimony you are about to give in the case now pending before this Court shall be the truth, the whole truth, and nothing but the truth, so help you God?


THE CLERK: Thank you. Please be seated.



Q: Deputy Rowe, can you turn on your monitor, please.

THE CLERK: Can I have you state and spell your full name.

THE WITNESS: Michael Rowe, M-i-c-h-a-e-l, R-o-w-e, Rowe.

MR. SCHWARZ: Thank you, your Honor.

Q: Deputy Rowe, how are you employed, sir?

A: Deputy Sheriff for the Riverside County Sheriff's Department.

Q: And how long have you been a Deputy Sheriff?

A: Approximately three years.

Q: And did you have any other police experience besides that?

A: I was employed by the Riverside County Sheriff's Department in a non-sworn position for two years prior to promoting to sworn deputy.

Q: And what qualifications did you receive in order to hold your position as a Deputy Sheriff with Riverside County?

A: Well, I went through a 24-week academy, trained in writing reports, taking notes, responding to calls, that kind of thing.

Q: Okay. And how much training did you receive with respect to the writing reports and interviewing people?

A: You get trained in that over and over again. You get trained for the six months you're in the academy. You go over reports, you write reports there. I did two years in the jail, in which case you go through a training program with the jail and you have to write reports there, criminal reports. And you go to Patrol, and you're on training again for four months, and then you get trained on how to write reports in the field as well there, before you're finally released on your own, and you write reports on a daily basis, every day.

Q: How long in your three years of sworn duty, how many interviews would you say you conducted?

A: Hundreds.

Q: Okay. I'm presenting on the ELMO -- let me see if I can focus in on this. Can you read that? Probably not.

A: I can read it because I'm familiar with the document.

Q: Okay. Well, you indicate that you are familiar with the document, sir; how are you familiar with the document?

A: I received these documents on the date that I arrived at the Golden Era Productions and given a bunch of documents by Ken Hoden and their internet expert, Ida Gavina, I believe his name was, presented me a bunch of internet documents as I arrived there.

Q: Okay. And what was the nature of receiving these documents?

A: I received a call that they had somehow been made aware of this internet site or news group -- or I'm not too familiar with the exact terminology of the internet -- but that they felt that they were being threatened by some of the postings and some of the comments that were on the internet. They called down to the station, and I was sent out there to handle it.

Q: And when you arrived you spoke, you said you spoke with a person by the name of Ken Hoden; who is he?

A: Ken Hoden, I believe he is the general manager of the -- maybe the San Jacinto chapter, I suppose. I know he was a general manager, I don't know of what. But he referred to himself as the "general manager."

Q: When you received these internet documents, did you review them?

A: Yes.

Q: And after you reviewed them what did you do?

A: Well, after I -- they gave me an opportunity to go over them, review them myself. They had an attorney present. They also had an internet expert present that kind of went over the document and kind of explained to me a little bit about how that works on the internet. After I completed my interview and everything with them, after reviewing the documents, I went out front and spoke to Keith Henson outside in front of the Scientology.

Q: Okay. So you went out and spoke with Keith Henson; what happened?

THE COURT: Just one minute, Counsel. Ma'am, are you a witness in this case?

UNIDENTIFIED PERSON: What case is this?

(Discussion held with Deputy out of reporter's hearing, and the unidentified person left the courtroom.)

THE COURT: Go ahead, Counsel.

MR. SCHWARZ: Thank you, your Honor.

Q: Where were we? You went out to talk to Mr. Henson; where was he at?

A: He was picketing directly in front of the church.

Q: So you approached Mr. Henson; what happened?

A: Based on the documents and the information that I had, the Penal Code that was presented to me by their attorney, I arrested Mr. Henson at that time, took him down to the station so I could further interview him and try to obtain a little bit more validity of the documents that I had. I was unable to interview him up there in front of the church because Scientology -- there was people following him around up there as well, so that was not a very good spot to interview him. So I took him to the station and interviewed him there.

Q: Now, you arrested him; so did you read him his Miranda rights?

A: Yeah.

Q: And did he still agree to go over the documents with you?

A: Yes.

Q: Okay. Now, with respect to this document, would you mind reading, please, the highlighted portion of the document

A: It says, "Ahh, I love the smell of gun powder drifting on the morning breeze."

Q: Okay. To put it in context, can you please read the line above it?

A: "Scientology is a business, and an unethical business at that. It is run by dishonorable men and women, and I will see it in ruins."

Q: Okay. So now, did you discuss this document with Mr. Henson?

A: Yes.

Q: Okay. And do you recall what he said with respect to the document?

A: I believe he quoted that exactly.

Q: He quoted it?

A: Yeah. I think if I remember correctly he said that exactly.

Q: Did he indicate whether or not he posted that document to the internet?

A: I don't recall if he -- I believe so. I mean, I don't recall if he said he posted that one in particular.I remember he said that he has posted hundreds of documents, or hundreds of postings on this. But as far as that one in particular, without any notes or anything I don't recall if he said he posted this one particularly.

Q: Did you tape that interview, Deputy?

A: Yes.

Q: And did you get a chance to listen -- do you have the transcribed -

A: No.

Q: What did you do with the -

A: It's still over there by my seat.

MR. SCHWARZ: With the Court's permission can I go -


MR. SCHWARZ: Thank you. Now, may I approach, your Honor?


MR. SCHWARZ: Thank you.

Q: For the record I'm handing Deputy Rowe a copy of a transcribed copy of the tape he made with Mr. Henson. Did you get a chance to listen to the tape and review the document, or the transcription?

A: Yes.

Q: Was it accurate?

A: Yes.

Q: Okay. Would it help you to refresh your recollection to exactly what he said if you turned to -- if you read the transcription?

A: Sure, yes.

Q: Would you turn to page 26. I apologize. 21.

THE COURT: The Court does not have that; is that correct?

MR. SCHWARZ: No, the Court does not. Your Honor, this is simply to refresh the memory of the witness.

Q: Does that refresh your recollection?

A: Yes.

Q: Now, what did Mr. -- did Mr. Henson indicate whether or not he posted that?

A: Yes.

Q: And what did he say?

A: He said he was posting a follow-up to something somebody else said.

Q: And did he -- indicated before that he quoted from that?

A: Yes, he said it exactly.

MR. HARR: Can I see your copy? The copy I have doesn't seem to have that on there.

MR. SCHWARZ: I gave it to him.

MR. HARR: Well, I thought I had what this was supposed to be. I don't have, and I have this.

Q. (By Mr. Schwarz): So he admitted to posting it?

A: Yeah.

THE COURT: Posting which, Counsel?

MR. SCHWARZ: Posting this document, posting this information, "Ahh, I love the smell of --"

THE COURT: People's 1?

MR. SCHWARZ: People's 1, your Honor.

Q: Now, after he talked about the document, and given the context of the interview, were you sufficiently satisfied that he was the author of the information that's contained in People's 1?

A: Yes, he was familiar with it. And he told me that he posted it, and said, "I posted it."

MR. SCHWARZ: Thank you, your Honor. Or thank you, Deputy. Your Honor, I'm going to ask the Court, because every Court is different, does the Court wish the People to attempt to introduce each posting, each item of evidence as we go along?

THE COURT: Yes, this morning.

MR. SCHWARZ: At the end?



THE COURT: All right. Counsel?

MR. HARR: Could I inquire, please, on this?

MR. SCHWARZ: I was going to -- do you want to do it after each posting, your Honor?

THE COURT: Yes, let's do it that way.

MR. SCHWARZ: Okay, that's fine. Go ahead, Counsel.

MR. HARR: Thank you, your Honor.



Q: Isn't it true that, Deputy Rowe, that at the beginning of your interview with Mr. Henson that Mr. Henson indicated that he really couldn't authenticate these postings without seeing them on the internet; isn't that correct?

A: Yes.

Q: And didn't he say that the best he could do with these postings would be to see if there was anything grossly aberrant or grossly out of whack, that he didn't really have any real recollection of exactly what was posted; isn't that correct?

A: I don't recall that without refreshing my memory.

Q: Okay. Well, somewhere in this -- I'll try to pull that part of the transcript up. I don't have that immediately here. But who did you say you got these postings from?

A: I had Ken Hoden, their internet expert -- like I said, I think his name was Ida Gavina or something like that -- there was four or five of them. I believe Ken Hoden was the one who made the phone call, my reporting party. I believe he was the one who actually gave me the documents after they had been reviewed by all four or five of the people who were there in the meeting.

Q: So I take it from your answer that you didn't actually try to pull up this news group or wherever this was posted and try to read for yourself the actual posting?

A: No. I am not that familiar with the internet. And for that reason I wrote the report up and sent it to the investigators for further review and to try to attempt to attain the validity of the documents. Even if I pulled it up on the internet, I wouldn't even know how to get there. So I didn't even attempt to. I sent it to the detectives to let them try to figure it out.

Q: Okay. Have you done any type of background check regarding Ida Gavina, the person who essentially gave these documents or pulled these documents up?

A: Nope.

Q: So as far as you are aware he might be under indictment for posting -

MR. SCHWARZ: Objection -

MR. HARR: Goes to the reliability of the document.

THE COURT: Your objection, Counsel?

MR. SCHWARZ: Your Honor, Counsel's placing words of -

THE COURT: State your grounds, Counsel.

MR. SCHWARZ: Your Honor, it's an attack, badgering the witness, your Honor.

THE COURT: Overruled.

THE WITNESS: I'm sorry, could you repeat the question?

Q. (By Mr. Harr): Sure. So I take it you didn't do any background check as to whether Mr. Gavina is under indictment for posting bogus postings in the name of Keith Henson?

A: No, sure didn't.

Q: Okay. So would that have any, if that is in fact true, would that change your opinion about the reliability of these documents in any way?

A: Well, not really. Mr. Henson was pretty familiar with everything. As I was going over the documents he was quoting them pretty much verbatim as he was discussing the topics of them. So he was in fact pretty familiar with them. Maybe he, you know -- I don't -- they may in fact be bogus documents. I can't prove that. And as far as I know, I don't know if there's any way to prove them, that they are valid documents. But Mr. Henson was very familiar with the questions that I was asking him about them, so.

Q: Okay. Thank you. I get the idea.

A: Sorry.

Q: Did you ask Mr. Henson -- if, in fact, he did acknowledge that he posted these things, did you ask him when he posted them?

A: I don't recall. I don't recall if I asked that, when he posted them, or not.

Q: It would appear that these were posted -- of course I'm no internet expert, either -- but it would appear they were posted in 1995; is that what you believe, or do you know when they were posted?

MR. SCHWARZ: I have to make an objection at this point. Mr. Henson has some type of electronic device where he's listening and talking to other people. I would ask that the Court instruct him not to do that -

THE COURT: What is that, sir?

THE DEFENDANT: It's my cell phone, and it vibrated. And my wife's outside with the checkbook for paying Mr. Harr. Sorry.

THE COURT: Take care of that on a recess. We'll take a recess at 10:00 o'clock.


Q. (By Mr. Harr): So the period of investigation I guess is somewhere between July, 2000 and September, 2000, or at least that's a relevant period according to the complaint. So as far as you know these were posted in 1995, or you have no idea when they were posted?

A: Without reviewing the actual documents, I remember that -- I believe there was some concern with Mr. Henson back in '95. Without reviewing the documents, again, I don't recall exactly the dates that they were posted. I know that -- after reviewing my report I believe it was July 15, somewhere around there, that they'd posted it. And they called me on the 19th of 2000. As far as actual dates and times that they were posted, again, without reviewing the documents I don't recall the dates.

MR. HARR: Thank you. Your Honor, could I please have a moment? I'm sure I recall there was a place where Mr. Henson indicated -

THE COURT: Go ahead.

MR. HARR: Thank you.

Q: Okay. Well, I don't seem to be able to find it right here. But anyhow, in your discussion, Deputy Rowe, with Mr. Henson, or your interview, did Mr. Henson indicate that he was trying to indicate that this was directed toward the five alleged victims in this case, that somehow this tied into an alleged threat?

MR. SCHWARZ: Objection, your Honor, relevance.

THE COURT: Sustained.

MR. HARR: Your Honor, in this case the relevant period is in 2000. This is a 1995 posting. This is an obvious comment from a movie, and I'm wondering what the relevance to this case is on the issue of threat.

MR. SCHWARZ: Your Honor, we're not -

THE COURT: We're just authenticating the document, Counsel.

MR. HARR: So on the other issue, to reserve on whether it's 352 material or whatever, that's still open?


MR. HARR: Okay, your Honor. Thank you.

THE COURT: Would you please sit down, sir.

Q. (By Mr. Harr): So you don't -- is it accurate to state, Deputy Rowe, that you don't recall whether he said he was unable to specifically recall these documents?

MR. SCHWARZ: Objection, your Honor, asked and answered.

THE COURT: Overruled.

THE WITNESS: No. Again, like I said, this was July 19th of last year. I don't recall everything that happened in the interview. I don't recall. He may have, he may not have. Without reviewing it, without seeing it to refresh my recollection in the transcript, I don't recall if he said that or not.

MR. HARR: No further questions, your Honor.

THE COURT: All right. Anything?

MR. SCHWARZ: May the Court indulge me, are -- we're going to go after every document, and then allow for cross-examination, and then the People at the end of the witness will move into evidence?





Q: Just with respect to People's Exhibit Number 1, Deputy Rowe, when -- from your recollection Mr. Henson indicated that he posted it, and from the context of the - from the context of your interview with him did you believe that in fact Mr. Henson was the author of what was written in the posting?

THE COURT: His belief I think, Counsel, is irrelevant. I think he said Mr. Henson told him that he thought he posted it.

MR. SCHWARZ: Okay. Well, may I address the Court?


MR. SCHWARZ: Well, your Honor, given the fact that Deputy Rowe was in the interview at that time, and he was the only person that was able to read the body language of this person, and in the context of how in fact he went about the interview, your Honor, and the way he went over the postings, your Honor, I believe that his impression about the authenticity is relevant in this case. Irrespective of whether or not he -- even if he said -- if he handed a document to Mr. Henson and he -- they basically showed it to him and he nodded, "Yeah, that's mine," that would be enough under the preponderance of the evidence, your Honor.

THE COURT: Is that what he said?

MR. SCHWARZ: Yes, your Honor. In a sense.

THE COURT: That's it. Isn't it?

MR. SCHWARZ: Yes, your Honor.


MR. SCHWARZ: Okay. I'll move on, your Honor.

THE COURT: All right.

MR. HARR: No further questions, your Honor.

THE COURT: Go ahead.

MR. SCHWARZ: Thank you.

Q: Deputy Rowe, I'm placing on the ELMO what's been previously marked as People's Exhibit Number 2. Do you recognize this document, sir?

A: Yes.

Q: And how do you recognize this document?

A: It's another one of the documents I was given by the church -- Ken.

Q: Okay. And did you review this document?

A: Yes.

Q: And would you read the highlighted portion?

A: Whatever that symbol is "has to watch for eagles as well as cruise missiles."

Q: And do you recall speaking to Mr. Henson or discussing with Mr. Henson this posting?

A: Yes.

Q: And what did Mr. Henson say regarding the posting?

A: He said that Miscavige, which is what that symbol refers to, I guess they use that to refer to someone named David Miscavige, who is a leader of Scientology, would have to worry about eagles as well as cruise missiles hitting him.

Q: Okay. And did he quote this information to you?

A: I believe so. I'd have to refresh my recollection, but I believe he did.

Q: And again, given the context of the interview and the discussion that you had with him, all things considered, it was your impression that Mr. Henson was in fact -

THE COURT: I don't see the relevance of that. That's a conclusion on the part of this witness. Irrespective of -- I mean, he may feel or believe something that's unsupported by the evidence. And he may have evidence that is unsupported by any document -- any statement. I don't know what the relevance is of his belief. And you haven't made it clear to me.

MR. SCHWARZ: Okay. The only way I can put it another way, your Honor, and I don't mean to waste the Court's time -

THE COURT: Thank you.

MR. SCHWARZ: I don't mean to waste the Court's time, your Honor. The only thing I would add is that given the fact that -- I don't mean to repeat myself, either.

THE COURT: Then don't, Counsel. Okay? Thank you.

MR. SCHWARZ: The indication then -- your Honor, I withdraw the question.

THE COURT: Thank you.

MR. SCHWARZ: I withdraw the question.

Q: So Mr. Henson in fact, and to your recollection in fact, claimed authorship in some form or fashion; is that your testimony?

THE COURT: I don't think that's what the witness said, but perhaps I'm incorrect. Would you read back what the witness's testimony was regarding the authentication by Mr. Henson?

(Record read.)

THE COURT: I believe that's what he said. I believe so.

MR. SCHWARZ: Thank you, your Honor.

Q: During the discussion with respect to this posting, and posting Number 1, too, did he say anything -- I mean, did he suggest that these were not his postings?

A: No.

Q: Did he imply that anyone has forged his name to these postings?

A: No.

MR. SCHWARZ: Thank you. No further questions with respect to this.

THE COURT: Thank you. Counsel?

MR. HARR: Thank you, your Honor.



Q: Deputy Rowe, I believe you authored a -- an incident report dated July 20th, 2000 regarding your interview with Mr. Henson; is that correct?

A: Without refreshing my recollection I believe it was on the 19th, but I'd have to check.

Q: Okay. In that report, whatever the specific day was, didn't you conclude with the words, "I am unable to determine the validity of the internet documents provided to me by Ken and Gavina?" Isn't that what was in your report?

A: I remember saying that. As far as the name, I remember the name being different. But yes, that was the reason why I forwarded it to the detectives, and I believe Mr. Henson at that time.

Q: So was that indicating that you didn't know whether these were actually Mr. Henson's postings or not? I mean, isn't that what your report is saying?

A: Yes. I wanted -- as far as admitting them into evidence -

THE COURT: Your answer is "yes"?


THE COURT: Thank you.

Q. (By Mr. Harr): So your answer then is you were not convinced that these were, in fact, Mr. Henson's postings? Maybe I could withdraw my question for a moment and give you what I believe is a true copy of that report. That might be helpful.

A: I do have a copy.

MR. HARR: Okay. Your Honor, may I direct the witness's attention to page 3 of that report?


Q. (By Mr. Harr): Please, Deputy Rowe, if you could go to page 3 of that report. And on the side where the lines are numbered, if you could please go down to 35. And the part that I am referring to I believe says, "I am unable to determine the validity of the internet documents provided to me by Ken and Gavina." Isn't that saying that you were unsure at that point that these were in fact Keith Henson's postings that we're referring to here in court today?

A: Yes.

MR. HARR: Thank you. No further questions.

THE COURT: Counsel?



Q: Deputy Rowe, when you wrote this, that "I am unable to determine the validity of the internet documents," you are talking about the actual documents themselves; but with respect to what was actually written in them, the actual saying now with respect to -- with respect to People's Exhibit 2, for example, now that this symbol "has to watch for eagles as well as cruise missiles," the authorship, were you convinced at that time that the defendant was the author of that -- of that saying?

A: Yes.

MR. SCHWARZ: Thank you. No further questions.

THE COURT: Anything? You don't have to.

MR. HARR: No, I know that, your Honor.

THE COURT: Just because -- okay. All right. Thank you, Deputy. You're excused. You may step down. May the witness -

MR. SCHWARZ: Yes, your Honor.

THE COURT: All right. Call your next witness.

MR. SCHWARZ: Well, your Honor, is -

THE COURT: You want to introduce that?

MR. SCHWARZ: I would like to introduce this at this time, because there is Deputy Greer we are going to do, and then independently the documents from the copy from the transcripts, your Honor. It would be helpful if we did it perhaps in parts.

THE COURT: All right. Let me hear your argument.

MR. SCHWARZ: Your Honor, the burden of proof for the authentication of a document is, in any case and especially with respect to a criminal case under Section 115, is preponderance of the evidence, your Honor. That means that it doesn't have to -- that it doesn't have to be under People versus Herrera, your Honor. We don't need perfect authentication in order to get it in. The deputy, in fact, testified that -- that Mr. Henson, that they had this discussion with respect to the documents, Mr. Henson was able to quote what was in the documents, and that they matched perfectly with what the documents that he had in front of him. So the content of the documents, your Honor, irrespective of that, lends itself to authenticity. The People don't have to prove that in fact -- in fact, in the document -- with respect to document 1 Mr. Henson said, "I posted it." So -- and Mr. Harr's cross-examination about the validity of the document and his opinion with respect to it, your Honor, well, if the Court wasn't allowed -- if I wasn't allowed to ask him his impression, your Honor, then his impression whether or not they were valid or not is equally -- equally cuts both ways. The fact is, Deputy Rowe in fact, when he read the document, and Mr. Harr -- or I mean Mr. Henson was able to quote from it and be able to do it. That should suffice, your Honor, under the low standard of preponderance of the evidence, your Honor. So I would ask that the Court accept and move into evidence People's Exhibits 1 and 2.

THE COURT: All right. Mr. Harr?

MR. HARR: Your Honor, as far as the aspect of authentication, I think Deputy Rowe testified that at least in his mind when he was fresh on this issue, he wasn't sure when he wrote his report, his report says he wasn't sure that these were in fact Mr. Henson's documents. And today Deputy Rowe testified that his recollection isn't really that clear, and he was having to rely on this and rely on that, and we were trying to get his impression and his sense. He really doesn't have a clear vision of whether these were, in fact, Mr. Henson's postings or not. Maybe they are or maybe they aren't. But it's certainly an open question based on his report at the time when he wasn't sure if these documents were in fact posted by Mr. Henson. And again, there is an issue here, there are other issues of redaction or whatever. In other words, just the highlighted area, I imagine that the D.A. is not intending to introduce just the highlighted area. And it's pretty clear that Mr. Henson, there's no evidence that he posted the rest of the stuff that's on that piece of paper. So I don't - before I make a final statement on the authentication aspect of it, and I haven't gotten into 352 yet, but what is he going to do with the rest of the posting that's clearly not Mr. Henson's that are on these documents?

THE COURT: You mean with respect to what? What are you talking about, Counsel?

MR. HARR: On Exhibits 1 and 2, there's other information on those two exhibits that were not posted by Mr. Henson.

THE COURT: And those are?

MR. HARR: Okay. On Exhibit 1, the highlighted areas to what Deputy Rowe testified, "Ahh, I love the smell of gun powder drifting on the morning breeze," prior to that somebody posted, "Scientology is a business and an unethical business at that. It is run by dishonorable men and women, and I will see it in ruins." There is no evidence that I recall that Deputy Rowe provided to indicate that Mr. Henson in fact posted that part of the -- of Exhibit 1. So if we're just dealing with the issue of authentication and not, you know, the time frame and this or that, I would like to know what the People's intention is regarding this other portion of the document. Is it going to be put in? Is this going to be considered a threat? Or are we going to go really back and put this in perspective? These are threads from long-standing conversations on a news group. If we're going to put this part in, maybe we ought to put the whole thread in to really put it in context, in answer to that. I'd really like to know what the D.A.'s intention is regarding the other information.

THE COURT: Let's find out. Counsel?

MR. SCHWARZ: Thank you, your Honor. Getting back to the -- it sounds like Mr. Harr is arguing that the People can't authenticate the information that's not highlighted, or the relevant information. People don't -- People would submit that the People don't have to authenticate that portion because it's not admitted for the truth of the matter asserted. It only puts it in context. And with any other -

THE COURT: Then it's irrelevant; isn't it?

MR. SCHWARZ: Excuse me?

THE COURT: Is it not irrelevant?

MR. SCHWARZ: It is relevant because it puts the conversation into context, your Honor. And it's not offered to prove the truth of the matter asserted. It's just simply to put the statement in context. Without the following statement, your Honor, it can't be understood. And we do this all the time in other documents where we -- where one person will say something, and in order to do that we will allow hearsay in to put it in context. For example, your Honor, we'll have a conversation, you and I. And I might testify to what you say, and then there will be a hearsay objection. But I'm not offering what you say into evidence to prove the truth of the matter asserted, only to put it in context. Only to put why I responded in that way, your Honor. And that's simply for this reason. So the People will submit they don't have to do that. And with respect to these postings, Mr. Henson has so much as -- has quoted verbatim what they are. So there can't be any denial that, in fact, he wrote it or it's his words. It just happens to be on a document. So does it meet the preponderance of the evidence, your Honor? The People would submit yes.

THE COURT: Mr. Harr?

MR. HARR: Thank you, your Honor. This is a 1995 posting.

THE COURT: Well, that's the -- it says that date. The Court's not convinced that that is the date. There's been no testimony to indicate yay or nay.

MR. HARR: And at the bottom, what I believe stands out the most, it says "Keith Henson" in the middle of the page. A person who might be a witness who might not have any experience with the internet whatsoever, or even if they have experience with the internet they have no experience with a news group or threads or responses, although the - Mr. Schwarz is indicating that it's offered just for this particular posting. It makes it -- makes it look to a casual observer, I believe, that Mr. Henson is saying that "Scientology is a business, unethical business," et cetera and et cetera. And I think that that is inflammatory, and it's misleading, and it's clearly 352 material. And I'm asking if he is going to redact this or if he is going to put the whole thread in where this comes down the whole chain.

MR. SCHWARZ: Your Honor, I object to this. This is a question about authenticity of the documents. And in fact, this entire argument is about the authenticity of the documents, not whether or not and how it's going to be used and what the relevance is or whatnot. The People are simply trying to prove at this stage of the game, you know, whether or not Mr. Henson in fact wrote it. And the People would submit that he has.

MR. HARR: May I make a brief reply to that?


MR. HARR: I thought Mr. Schwarz said he was moving to introduce this into evidence. That just basically would cut me off from any further ability to address these issues.

THE COURT: With respect to 1, the Court has no idea what -- if this is -- if this is a document in its entirety, if it went on -- I mean, there's no evidence as to when it was posted, as to when this response, the last sentence by Mr. Henson, was posted. If that was -- if indeed it was on Sunday, August 13, 1995 at 7:15:47 General Mountain Time. The Court has some problems with this document. I think if Counsel, Defense Counsel will have an opportunity to cross-examine -- let me think. Let me think about it for a minute. Let me get on to 2.

MR. HARR: Your Honor, can I be heard on that one briefly?


MR. HARR: Deputy Rowe's testimony was that the parens with the asterisk in the middle of it referred to, I believe, Mr. Miscavige, if I am pronouncing his name correctly. And certainly Mr. Miscavige is not a possible victim in this case, and I see that this really has no relevance in this case whatsoever. He's not an alleged victim.

THE COURT: But he gave it to the deputy, I think. That he gave it to the deputy, I don't think it relevant, or that he didn't give to the deputy. The deputy received it from someone, said he received it from him. The question is whether or not the victims will be able to testify that they saw this and that they were concerned about it.

MR. HARR: Okay. We have the additional matter above this particular posting as well. This is obviously a response to something posted by somebody else, or at least that's -- there's no indication that Mr. Henson actually posted that particular part of it.

THE COURT: I think with respect to Number 2 Counsel will be able to adequately point that out. It appears that this document bears a date of July 9th, and the interview took place shortly after that. I think in the context in which the response is made is reasonable under the circumstances, and the Court will permit -- will introduce -- allow the introduction of Number 2. With respect to Number 1, I don't think it's an easy answer. And the Court has some reserve on it. Let me ponder that.

MR. SCHWARZ: Your Honor, may I be heard?


MR. SCHWARZ: With respect to the Court's concern.


MR. SCHWARZ: If the Court's concern is the date and when it was pulled off, and the deputy didn't -- did, in fact, testify, if the Court is -- if that's the Court's concern and not necessarily what was written, the People didn't anticipate that this would be the Court's concern with respect to when it was pulled off the internet. But because the -

THE COURT: No, Counsel. I don't know when the response was made. That's what the concern is. I don't know when this response was made, whether it was made at any time around August 13th, 1995, or whether it was made in July of 2000. And that's a five-year span. So I don't know -- I mean, I think that it would be confusing to the jury to introduce a document that was originally prepared in 1995, and perhaps responded to in 1995, and taken off of the internet in 1995, and now introduced in 2000, or whether it's any permeation of those particular facts.

MR. SCHWARZ: Well, the People would respectfully submit, your Honor, that this is a -- the reason why -- it sounds as though the Court is somewhat concerned about the relevance. I think I understand if that's what the Court's indicating. Your Honor, the relevant period of time that we're talking about stems from 2000. That's the -- from the -- from the complaint, your Honor, that's the period that the People selected. However, Mr. Henson has been posting to the Internet pretty regularly for a period of time. It's a culmination, your Honor, that starts back in 1995. And it starts -- the postings become more egregious, and the period in context, your Honor, leads the victims to have a serious fear that culminates in the year 2000.

THE COURT: Counsel, you're asking to introduce People's 1?


THE COURT: You're not asking to introduce anything prior to People's 1; am I correct?


THE COURT: You're not asking to -- if you're not asking to introduce any other evidence, let's talk about 1. You have no other postings, do you, that you want to introduce that will support allowing this document to be -- to be authenticated or to bear some relevance on its authentication?

MR. SCHWARZ: No, your Honor, but -

THE COURT: So that's your choice; isn't it, Counsel? Why are you making that argument? I'm not sure the Court understands.

MR. SCHWARZ: Because as I indicated before, that the Court is concerned with the age of the document -

THE COURT: Yes, it is mightily concerned with that.

MR. SCHWARZ: -- and how it bears on the actual - how it bears on the victims in the year 2000. And so that's, the People would respectfully submit, your Honor, that I'm simply informing the Court that how it bears on the -- the Court's inquiring as to the People's case and how it's relevant. And all we're talking about is authenticity. If the Court, and I tried to explain -- I'm trying to explain that in fact it's relevant in context to the other documents, if for no other reason, your Honor. Because the Court's concerned with the age. So that's the reason why the People were trying to explain to the Court -

THE COURT: But you have no other evidence of that other than this document and the one that's dated July, 2000; is that correct? You're not offering into evidence any other documents except the one that was -- that bears the date, and the Court has no knowledge of whether this is accurate or not, but the one that bears the date 1995 and the one that bears the date of July 9th, 2000?

MR. SCHWARZ: Correct.

THE COURT: There's nothing in between that you've shown.

MR. SCHWARZ: Your Honor, because we haven't moved to -- we haven't moved to the other documents.

THE COURT: That's what I'm asking you, Counsel.

MR. SCHWARZ: Correct. And I'm indicating -

THE COURT: Are you going to move other documents in?

MR. SCHWARZ: Yes. We're going to move 25 documents in.

THE COURT: Why didn't you say that, Counsel?

MR. SCHWARZ: Because -- I apologize to the Court that I didn't understand -

THE COURT: Let me hold off on 1. I will allow People's 2 in at this point. I am going to withhold a ruling on 1 until such time as we've been satisfied as to the authentication of the others. Yes, sir?

MR. HARR: Your Honor, can I please ask a question? If 1 is introduced, or allowed to be introduced into evidence, I take it it's not going to be redacted? It's just going to have the whole -

THE COURT: It will be taken in context. Counsel will have ample opportunity to let the jury know that the only document -- I mean the only item that the People are introducing, it's only for the purpose of context, is the one line from the defendant. Okay?

MR. HARR: Thank you, your Honor.

THE COURT: All right.

MR. SCHWARZ: Thank you, your Honor. If the Court will take a look at Exhibits -- I've given the Court a master list, your Honor. The People intend, for the Court's edification, your Honor, to introduce 3 through 25. The Court has a copy of the -- a certified copy, self-authenticating, deposition of Keith Henson on October the 25th. That's Exhibit Number 3, your Honor. Exhibit Number 4 is a trial transcript involving Mr. Henson against Religious Technologies Center, May 6th, 1998. And a deposition of Mr. Henson of July 13, 2000 - if the Court will indulge me on one -- on how the Court -- or the -- on how the People intend to -- unless the Court wants a talking head. But for example, if the Court would review Exhibit Number 6, your Honor.

MR. HARR: Maybe I'm missing something. Where are we with this? Is 3 the big stuff? Big, thick folder?

MR. SCHWARZ: I think so, yes.

MR. HARR: A lot of this stuff I haven't seen before.

MR. SCHWARZ: It's -- it only goes to the -- I gave you the excerpts of just the certified copies of this.

THE COURT: All right, Counsel. On 6?

MR. SCHWARZ: On 6, your Honor. The way it works is the posting dated July the 7th, 2000, which is in the October 25th, 2000 deposition. So if the Court will go to the October 25th, 2000 deposition and -

MR. HARR: I'm not -- I apologize, your Honor. I'm not following this. I've got a master list of exhibits numbered on one side, and then I have -- I'm really having a hard time following this.

MR. SCHWARZ: And I'm trying to explain it for the Court and for you.

THE COURT: There's two deposition transcripts.

MR. SCHWARZ: One is an exhibit. One is the exhibit, your Honor, and one is the deposition transcript itself.

THE COURT: Oh, okay. All right.

MR. SCHWARZ: So the deposition transcript, in the deposition, deposition -- I'll start over. People's Exhibit Number 6 is identical to the deposition Exhibit Number 61 of October the 25th. So if the Court will go to Exhibit 61.


MR. SCHWARZ: It will notice that it is identical -

THE COURT: I will take Counsel's representation that it is identical. The Court doesn't have at this time the time to examine it. I assume Counsel -

MR. SCHWARZ: That's correct, your Honor. They're identical.

MR. HARR: I still don't know where we are. I haven't seen this big pile of paper, and I haven't seen this deposition transcript before.

THE COURT: It's now 10:15, gentlemen. Let's take our morning recess. Let's take about 15 to 20 minute recess, come back about 10:30.

MR. SCHWARZ: Thank you, your Honor.

(Recess talken )

THE COURT: All right, Counsel. Go ahead.

MR. SCHWARZ: Thank you, your Honor. I believe we left off with trying to explain how the system works. We were at People's Exhibit Number 6. And if the Court goes to -

THE COURT: Yes, you told me.

MR. SCHWARZ: Right. So you go to 61.


MR. SCHWARZ: And that explains, and they're identical. So then the Court would next go to page 599 of the actual deposition, not the exhibit portion, your Honor, lines 7 through 23. And I'll be the talking head for the first one, if the Court would indulge me.

THE COURT: Go ahead.

MR. SCHWARZ: So line 7 would be, "Question, okay, fine." Exhibit 61, now we're referencing it. "Without the context, I don't know. Well, let me see. This is -- this was in the context of a hypothetical discussion. Well, this 61 is a thread. The rest of the thread would be necessary to see what I meant here. All right. I can't tell. If I'm reading this correctly, the part that you have contributed to this, to this thread is, 'and a good topo map, t-o-p-o map, the approach is clear from the south. "' And that's in quotes. "That's the part that you added in this discussion; right? "Right." So Mr. Henson in fact -- and that's essentially how it goes for every one with respect to the deposition transcripts. Or the trial transcripts, your Honor.

THE COURT: Okay. So?

MR. SCHWARZ: They've been sufficient -- the People would proffer these as sufficiently authenticated for purposes of this trial, your Honor.

THE COURT: Mr. Harr?

MR. HARR: Thank you, your Honor.

THE COURT: Briefly, please.

MR. HARR: The case had been filed for some time, and then after certain discussions with the D.A.'s Office apparently, and I don't have any firsthand information on this, then at some point one of the Scientology attorneys took the deposition after he was facing a criminal matter -

THE COURT: Wait a minute, Counsel. Let's talk about Exhibit 6. That's all we're talking about. Tell me what your objection is.

MR. HARR: I think it was taken in violation of Mr. Henson's Fifth Amendment right to remain silent.

THE COURT: Who violated his rights?

MR. HARR: I believe that there was a conversation between someone from the District Attorney's Office and the Scientology to go out and verify -- try to authenticate certain documents, then they bring it right back to Mr. Schwarz, and he gives it to me. I believe they were in essence an agent for the District Attorney's Office. And although Mr. Henson had an attorney, there was no reason for that attorney to think that he had a criminal situation going, as far as I know. I certainly wasn't notified that this deposition was going to be taken. I was certainly notified after the fact. That would be one. Secondly, as an example, Number 61, Mr. Henson went on to say later as to that particular document that he didn't know. And I'd like to refer the Court to a couple of places. One would be page 593. And there were certain qualifications that were understood before these documents were gone through by Mr. -- through Mr. Rosen's questioning. And on line 20. "Okay, all right. Next I want to go through a series of postings of yours. And we've been through this before. I'm going to ask as to each one whether they are authentic in what it purports to be, and that you posted with the same limitations that we had for several years, which is in terms of the header and stuff like that. You cannot confirm that they are accurate or not." And then flipping to 61 then, for, say, going beyond 599, going over a long discourse that covers pages, getting over to page 602, the bottom of 602, top of 603. Now we're still on Exhibit 61. There's been a real digression in this testimony -

THE COURT: What page are we?

MR. HARR: 603.

MR. SCHWARZ: What lines, Counsel?

MR. HARR: Line 1, please. "The Witness: I don't know actually -- no. What date is that? July 7? I'm not sure. Okay. I really don't know. I would have to go look into my files. That may be an entirely bogus posting." Mr. Henson did not authenticate -- this is an example of how this goes.

THE COURT: That's what I want you to do, Counsel. All right. Anything?

MR. SCHWARZ: Yes, your Honor. I think Counsel -- I would refer the Court to line 6 on page 594. Counsel conveniently left off the last portion of it, saying, "My only question is as to each one of these exhibits, is this the text as deponents of the header, something that you can -- you can tell me what it is posted to?" So what -- what Mr. Rosen is referring to, your Honor, the header is the information -

THE COURT: I understand what the header is.

MR. SCHWARZ: So essentially what Mr. Henson is doing is he quotes from what it is. "A good topo map, the approach is clear from the south." Your Honor, so what Mr. Henson has done in these postings has authenticated the text, not necessarily the header itself.

THE COURT: Would you explain the statement that he makes on -- at line 5 on page 603?

MR. SCHWARZ: "I really don't know, I would have to look into my files." This is referring -

THE COURT: Why don't you finish the rest of it, Counsel? "That may be an entirely bogus posting." Is that an authentication of a statement?

MR. SCHWARZ: Your Honor, I would refer the Court back to line -- or page 599, 7 to 23, your Honor.

THE COURT: 599, line what?

MR. SCHWARZ: 7 through 23. Mr. -- at line 17 specifically. "If I'm reading this correctly, the part that you've contributed to this, to this threat, 'and a good topo map, the approach is clear from the south."' That is a direct quote from the very -- or for the -- from line -- or People's Exhibit Number 6. "That's the part that you added in this discussion; right? "Right." So what Mr. Henson is doing is, he is unable to -- I believe what he is doing is, he is unable to authenticate the document with respect to the headers and perhaps whatever else is in this document, the numbers and whatever. But with respect to the actual text, "A good topo map, the approach is clear from the south," a quote, he's saying, "This is what you've contributed to; right?" "Right." He's added onto it, your Honor. So that's how he does it. So whether or not it's' on a -- on this particular paper or not, your Honor, Mr. Henson is playing games with Mr. Rosen. It is, in fact, his words.

THE COURT: Let me respond to something Mr. Harr said, and then I'll make my ruling. The protection against self-incrimination does not exist between two individuals, between two parties. It exists only as a protection against the government. Therefore, any statements that the -- any questions that the attorney may have asked in any other context would not be protected. In order for it to be protected, Counsel would have to show that the attorney was acting for the District Attorney. And the mere naked allegation that such occurred is insufficient. With respect -

MR. HARR: Your Honor, may I reply to that?

THE COURT: No, you may not. With respect to Exhibit 61, the -- the line would be -- the only acceptable portion of that exhibit would be the statement, "And a good topo map, period. The approach is clear from the south." There would be nothing else that would be permitted, because nothing else has been authenticated. Let's move on to the next one.

MR. HARR: Your Honor, may I please discuss that? Mr. Schwarz was able, after you made a ruling, to apply some additional persuasive thought to one of the issues this morning, and I was hoping that maybe I could on this one.

THE COURT: Briefly.

MR. HARR: Thank you, your Honor.

THE COURT: And I don't know why I'm doing it.

MR. HARR: Thank you, your Honor. First of all, that it's a bare allegation about the Fifth Amendment, the other case is a bankruptcy case. The fact that there is a topo map and an approach to the south would have nothing to do with a bankruptcy case. They in fact are an agent of the District Attorney.

THE COURT: Then it would be irrelevant to the bankruptcy; wouldn't it, Counsel? It's not irrelevant with respect to any statement that the defendant made. That is -

MR. HARR: Not from that standpoint, I agree, your Honor. But that's my point about agency. If they weren't the agent of the District Attorney, why would they be out there asking about topo maps in a bankruptcy case?

THE COURT: I don't know, Counsel. But you haven't made it clear that that was their avowed purpose. You've stated that that is your belief, and I believe you believe it. But you haven't made any -- you haven't offered any evidence that that was the case. And without evidence, it is just a naked assertion.

MR. HARR: All right. I talked with the District Attorney about the issue of authentication, and I mentioned to him that I thought he had serious problems with authenticating certain documents, including the ones in issue here in this deposition. Within a few days -

THE COURT: Are you testifying now, Counsel?

MR. HARR: Sounds like it, doesn't it, your Honor?

THE COURT: Sure does.

MR. HARR: I guess I'd have to stop on that one.

THE COURT: Okay. Thank you.

MR. HARR: It's not uncommon for a witness upon reflection to change his testimony. And it's I believe not accurate to say that a qualifications on a header is the same thing as saying that a posting is entirely bogus. On reflection, after Mr. Henson considered the fact at hand, he stated on page 603, "That may be an entirely bogus posting." That's not an authentication, your Honor, I would argue, because he qualified his prior testimony.

THE COURT: Counsel, I've indicated the Court intends to redact everything except the last statement, "And a good topo map. The approach is clear from the south." That's all the Court will permit in on Number 6. Let's go on, please.

Go to next part of transcript
Back to index