Thursday, 22 October 2009

34 Defending the Salesman

June 16: The Scientologist and salesman accused of fraud has been tried in an atmosphere tainted by media hysteria and soured by a prosecution summing up that smacks of the Inquisition, his lawyer argued.

Didier Michaux, the Scientology bookshop’s star salesman, faced a charge of organised fraud for his part in the alleged offences.

His lawyer, Maître Alexis Gublin, constructed a defence that was similar in many ways to Maître Virginie Benmayor’s defence of fellow salesman Jean-François Valli, arguing that his client, a sincere Scientologist, had at all times acted in good faith.

He referred too to the hysteria media coverage in the run-up to the trial, which had disrupted the atmosphere in which the trial had taken place; and to what he called the inquisitorial tone of the prosecution’s summing up.

For while the debate in the courtroom had done the tour of the relevant questions, he said, it had been disrupted to some extent by events outside.

His impression was that this case had been exceptional not so much because it involved Scientology, but because of the media coverage of the affair.

“A month before the hearings we all had the impression that everything was going to move forward, serenely, efficiently…” said Maître Gublin. The lawyers had contented themselves with working on the case files.

But the pressure had started to increase with media coverage in the run-up to the trial arriving at a peak on May 25, the opening day, he said.[1]

“Very, very quickly, one got the impression that the situation was going to be upset,” he added. And indeed, the debate had not been as serene as one might have hoped.

Like many of his colleagues on the defence side, he had not appreciated the 11th-hour bid by UNADFI, France’s federation of anti-cult groups, to acquire the status of plaintiff in the case.

According to UNADFI president Catherine Picard, they had decided more than a month ago on making the bid, said Gublin. But they had decided to wait until the last minute until making their application.

“I find that scandalous,” he said. It was not acceptable for a defence lawyer to receive documents crucial to the case, on the Friday morning before the Monday opening of the trial.

Then, once the trial had started, it quickly became clear that the prosecution had performed a volte-face from its position during the investigation, when it believed there was no case to answer.

In the pre-trial discussion there had been no hint of this change of policy and the defence lawyers had proceeded accordingly, he said.

Here again, they had the impression that someone had pulled the rug out from under their feet.

And given that this matter had been moving through the judicial system for 10 years, this was not an acceptable state of affairs.

“In those 10 years, certain questions were never put,” he added. But the indictment, when it was released in 2008, had introduced new ideas to the case concerning the commercial, financial aspects of Scientology’s activities.

None of the defendants had been questioned about these matters, he said: but they now found they would have to defend themselves against these new elements.

“We keep hearing that this is not a trial against a religion. Okay, but then why are we hearing about a Faustian pact,” said Gublin, a reference to the prosecution’s summing up.

“This is the Inquisition, this Torquemada, we are in a situation where the defendants are being identified with the Devil – and that isn’t a trial of religion?”

The prosecution, he continued, had said that we had to look at things in their ensemble.

“But your brief is very strict,” he told the judges: “You cannot go beyond the indictment.”

“This is not a trial of a religion”

The day before, he had waited during the prosecution’s summing up for a mention of his client, Didier Michaux.

“It was 74 minutes before his name was mentioned – and it was never mentioned in connection with [the plaintiff, Aude-Claire] Malton,” he said.

At the start, the prosecution had treated the court to their account of a series of peripheral elements, he said.

But their account of fraud, based on the non-profit status of the Association spirituelle de l'Eglise de Scientologie (ASES, which runs the Celebrity Centre) had been contrived, he said.

They had made much ado about the refunds, as if somehow this was an indication of Scientology’s guilt. But that was to get things backward he said. “Normally, when you refund someone that is something positive.”

“I repeat, this is not a trial of a religion,” he said.

So far as he was aware – and he was open to being corrected – the French courts had never considered the orthodox practice of Hubbard’s teachings to be fraudulent.

“Of course, you are free to judge otherwise,” he added. “You can turn jurisprudence on its head

“And why not? Let’s remember that all the judgements have been about specific acts and specific crimes,” he said.

“I want to say that this is a political debate,” said Gublin. How else could one interpret the prosecution’s call for such heavy sentences, when in 2006 their office had not wanted the case to even go to trial?

“You can practice Scientology for 30 years and it is not a problem – and then suddenly it is forbidden,” he said.

“If there is a political problem [with Scientology], then it should be handled by the state,” said Gublin, repeating a point made by his colleague Maître Virginie Benmayor earlier.

“The government has the power to ban, but you should not be required to make a decision that is political and in a context that is not serene and in which the situation has been manipulated (instrumentalisé),” he added.

And in considering their judgment, he reminded the judges that they were bound to stick to the wording of the indictment, which he argued had not properly established Michaux’s guilt.

The supposedly “systematic recourse” to the personality test to recruit people into Scientology mentioned in the charge against Michaux for example did not stand up to scrutiny, he argued.

For of some 46 Scientologists dealt with in the case files, only two were recruited via the personality test, he said. “Is that ‘systematic recourse’?” he asked.

The indictment had also dismissed the personality test as being without scientific value, he said. But was it?

“I don’t know, and when I don’t know I look at what those who do know are saying.” According to one expert report, the personality test was a variation on a recognised test, the Johnson Temperament Analysis (JTA).

I can’t say if this has a scientific value,” said Gublin. “But when you have an expert who says it is only a very weak variation of a scientifically recognised test, I say you can’t question its scientific status.”[2]

But over and above all these points the real problem was the moral element, he said: for how could one know if someone was acting in good or bad faith? There had been a lot of debate about the e-meters used in Scientology’s counselling, or auditing: about how expensive they were.

“But when Michaux buys an e-meter, then am I pleading for him as victim or as a defendant?” he asked.

And one could make the same point about the personality tests, said Gublin, for Michaux had taken them too.

“If the plaintiffs say the personality tests are to deceive people, then what do you say if he has taken the personality test himself? And when he buys a book, does he become a victim again?”

Michaux acted in good faith

When we are talking about good faith, it is an element that should exonerate Michaux completely, said Gublin.

Even Roger Gonnet, the former member turned critic of the movement, had said during his testimony: “You can’t do Scientology without having some good faith,” Gublin reminder the court.

“Scientologists are convinced that the personality test is valid… If Michaux believes it is valid, if he is acting in good faith, then how can you say this is fraud?” he asked.

And just as his colleague Maître Yann Streiff had done, Gublin he pointed to the caution with which the court-appointed psychiatrist Dr Daniel Zagury had dealt with the question of intentionality.

We will not broach the question of intentionality here, which is probably not to harm, but to recruit followers, people who share the same vision of the world, according to a protocol and procedures gradually implemented by the organisation, Zagury wrote in his report.

Cathy Steinberg, who had appeared as a defence witness for Michaux, had described him as “fundamentally honest”, he added.

“Steinberg had said he wants to give to other people what he had received [from Scientology],” said Gublin. “He has faith. I’m not saying that his faith is better of worse, I’m just noting that he has faith.”

And the prosecutor’s office had made that same point in 2006 when declaring that the case should not go to trial, he added.[3]

Gublin also repeated the point made by his colleagues that since the plaintiffs and former plaintiffs had been refunded it was difficult to see how one could talk in terms of fraud.

The prosecution had expressed great scepticism about the success stories written by the former plaintiff Eric Aubry. So Gublin had gone through them, excluding any written just after any religious ceremonies.

“I got eight spontaneous letters written by him outside the church, in complete freedom – when people were asking for nothing,” he said. He quoted a few extracts that referred to the infinite creator, to truth and to love.

“The only thing that I can take from these letters is that they are spontaneous,” said Gublin. “Aubry was on a mystic journey. You can rewrite history afterwards, but what he wrote himself, alone, we don’t have the right to push these aside.”

Aubry, he added, never sat a personality test with Michaux. Since the personality test was a key part of the indictment, if Michaux did not have Aubry sit the test he could not be convicted.

“The whole case rests on the mention of tests,” said Gublin.

Aubry’s letter in which he had complained of harassment from Michaux and other Scientologists was quite another thing: but harassment did not constitute fraud, said Gublin.

It was the same with Pierre Auffret’s actions, when he milked his own company of funds to pay for his Scientology training. When Auffret met Michaux he had already been a Scientologist for three years.

And in any case Auffret had done everything on his own initiative: for a while he had even managed to convince his company that the spending was justified.

As for the plaintiff Aude-Claire Malton, she did not mention Michaux, and since she had not had any dealings with him, then he could not be convicted for anything concerning her.

It was unprecedented, said Gublin, that Scientology associations had been charged, said Gublin. The French courts had never before targeted Scientology as an organisation in this way.

But that battle, he left to the lawyers who followed.
[1] For more on the media coverage see the introduction to this section of the site.
[2] It is worth repeating here that although the investigating magistrate commissioned reports on the personality test by two court-approved specialists, their work was ruled inadmissible because a procedural error: one of the experts had forgotten to date a document. It is not clear to which test Gublin is referring, but it is presumably one that was introduced by the defence.
[3] The September 4, 2006, prosecution document had argued that the Scientologists investigated “were convinced of that the services proposed worked and their actions were driven by genuine faith.”

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