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