The first three days of Scientology’s trial on appeal had been taken up with a flurry of defence motions trying to get the case abandoned or at least postponed: all to no avail.
Judge Claudine Forkel rejected them all, describing at least one of them “devoid of any serious character”.
Undeterred, the defence had filed fresh motions to the same end.
But on Thursday November 10, the fourth day of proceedings, things began to get personal.
Oliver Morice had at the original trial represented both UNADFI (the National Union of Associations for the Defence of the Family and the Individual, Victims of Cults) and one of the individual plaintiffs, Aude-Claire Malton.
But the court had denied UNADFI the status of injured party, or plaintiff, in the case, a decision it handed down after the trial in the body of its main judgment.
At the original trial, Malton had told how the movement, in the space of just four months in the summer of 1998, had managed to get more than 140,000 franc (21,000 euros) out of her.
Her testimony, the distress and confusion she showed during her time in the witness box, had packed a considerable emotional punch – and it had been widely reported.
Wisely, the defence lawyers had treated her with kid gloves, making no concerted attempt to attack her credibility.
This time however, Scientology had spared itself the embarrassment of having Malton testify to her ordeal: they had reached a settlement with her and she had withdrawn from the case. Her story remained in the files of course: but this time she would not be there to tell it.
That left Morice with just UNADFI as a client – and as things stood, they had no standing in the case. So UNADFI, through Morice, renewed its application to be accepted as a civil party. And Scientology, of course, objected.
They knew that if the court decided to reject UNADFI’s application, Morice would have no business in court – and that would considerably improve its chances during the trial on appeal.
As effective as the prosecutors had been at the original trial, they did not have Morice’s in-depth knowledge of cult issues, gained from more than a decade representing UNADFI.
Maître Olivier Saumon, for Order of Pharmacists, had a perfect grasp of his part of the case concerning the illegal practice of pharmacy: but he could not match Morice’s knowledge of Scientology.
At the original trial, Morice had used a file of embarrassing quotes from Scientology’s founder L. Ron Hubbard to great effect.
Scientology had called two expert witnesses to testify to the effectiveness of the electrometer – the device used in the movement’s therapy sessions.
Morice had confronted them with some of Hubbard’s more extravagant claims for the device, and both of them had distanced themselves from his hyperbole – one of them rubbished it out of hand.[i]
And some of the most compromising passages that Hubbard had written on the subject of hard sell – some of which eventually ended up in the court’s judgment – were ones that Morice had introduced into the record.[ii]
With Malton gone, this time around keeping UNADFI out of the trial meant excluding Morice too. Judge Forkel could always refer to the documents filed in the original case. But if Morice had no standing in court, the lawyer with most knowledge of the movement would be out of the proceedings.
That is how much was at stake.
The seven lawyers for the five Scientologists and two Scientology organisations appealing their convictions began a three-hour assault on UNADFI’s standing in the case – and, at times, on Morice himself.
Equality of armsMore than one lawyer pointed out that UNADFI had repeatedly been refused the status of plaintiff in a string of previous cases.
The organisation actually changed its statutes to try to meet the objections that had led to its exclusion in the past, but that was too little, too late, the defence argued.
Louis Pamponnet, the lawyer defending SEL, Scientology's network of bookshops, compared the situation facing Scientology with a case involving Carlos, the convicted terrorist, which had recently returned to the French courts.
An association representing victims of terrorism had had its application for plaintiff status refused on grounds similar to those that had disqualified UNADFI in the past, he noted.
“How can we tolerate a situation in which Carlos doesn’t have to put up with an association that has nothing to do with the trial, but if you are Scientologist… ?”
Scientologists should enjoy the same kind of legal protection afforded the convicted terrorist Carlos, he argued.[iii]
Excluding UNADFI from the case would allow for a tranquil debate he argued: the court would able to consider the case without the prejudice normally shown towards Scientology.
Another defence lawyer argued that granting UNADFI plaintiff status would violate the principle of the separation of powers: the executive branch of the state should not interfere in the judicial process.
The argument here was that Catherine Picard, the head of UNADFI, was part of the steering committe of MIVILUDES, the government's watchdog in the area of "cult-like tendencies" which is attached to the prime minister's office. Her duties included helping to educate lawyers and law enforcement officers in the issues surrounding cults in general – and Scientology in particular.
More than one lawyer jumped on comments made to the media by Picard after the trial. Asked if UNADFI would appeal the decision to deny them plaintiff status, she said yes, while appearing to concede that they did not have a leg to stand on.
For the defence, this confirmed that UNADFI was simply looking to use the courtroom as a platform from which to continue a high-profile campaign against Scientology.[iv]
All this amounted to an unacceptable muddying of the waters between the legislative and the executive, they argued. It was a question of equality of arms in the courtroom – one of the most basic rights of the defendants.
Maître Gérard Ducrey, for the defendant Sabine Jacquart accused UNADFI of practising exactly what it accused Scientology of – infiltrating the state apparatus.
Pamponet described UNADFI as a parasite, using the trial as a platform to advance its own arguments when it had no legitimate business in the courtroom. Its presence at the trial would pollute the proceedings and make a fair trial impossible, he argued.
And for just that reason they urged the judge not to follow the lower court’s decision to defer judgment on this question until after the case had been heard: that would let UNADFI's lawyer Morice into proceedings where he no longer had any business, they argued.
Again, they raised the issue of the justice ministry circular, the subject of a procedural motion already rejected by the court the previous week.
The five-page document, on "...vigilance and the struggle against cult-like tendencies" does not mention Scientology by name. But the defence argued that by issuing it in the months leading up to the trial, the executive had effectively put pressure on the court as to how they thought the case should go.[v]
And one defence lawyer complained that Morice had filed crucial papers relating to his bid to get UNADFI admitted as a plaintiff at the last possible moment – that he had not acted in good faith.
Along the way, there was a lot of French and European law also cited – but the main point, repeatedly hammered home by the defence, was that time and time again the courts had denied UNADFI the status of plaintiff. There was no reason to change that now, they submitted.
Morice had sat quietly while the defence fired their salvoes: then it was his turn.
But only 10 minutes or so into his presentation, as he started to deal with the attacks on his own conduct, the situation quickly deteriorated.
Morice had denounced what he saw as the time-wasting tactics of the defence in lodging multiple procedural motions such as the QPCs.
The defence had turned that back on him, accusing him of having failed to provide vital documents relating to UNADFI’s change of statutes in good time.
It was he, and not Scientology’s lawyers, who was guilty of bad faith, they argued: for it had only been at the 11th hour that he had offered fresh grounds for his application, giving the defence little or no notice of his change of tactics.
It was when Morice tried to rebut this charge – arguing that the papers in question had long been among the case documents – that things got out of hand.
Furious defence lawyers tried to interrupt him, shouting him down as they accused him of trying to introduce new documents on the sly.
Morice clearly resented the accusation and, having sat through three hours of their pleadings already, took umbrage, giving as good as he got. The proceedings quickly degenerated into a shouting match.
In a bid to restore order Judge Forkel threatened to call in the batônnier, a senior lawyer attached to the court who mediates courtroom disputes such as this one.
The defence readily agreed, convinced of their case, so the judge adjourned proceedings. Shortly afterwards the judges, the lawyers and the bâtonnier all disappeared into chambers to thrash it out in private.[vi]
When they emerged, a little later the judge adjourned the proceedings again until the following week, November 15: something clearly needed looking into.
But that meant the appeal would be entering its fifth day – a trial originally scheduled to run until December 1 – without actually having started to look at the facts of the case.
It looked very much as if the trial was going to run over schedule. With that in mind then, the judge started checking dates with the lawyers and pencilled in four extra court dates towards the end of the month.
As things turned out, they weren’t needed.
[i] Two experts called by Scientology were happy to testify that the e-meter was a perfectly effective measuring device and were intrigued by the way it appeared to measure emotional responses.
Morice read them, in turn, one of Hubbard’s more extravagant passages in which he claimed that the e-meter: …utterly dwarfs the invention of the microscope, for Leeuwenhoek found the way only to find bacteria; the electropsychometer provides the way for man to find his freedom and to rise perhaps to social and constructive levels of which man has never dreamed and to avoid the perils in that route which man, in going, would have found more deadly than any bacteria ever evolved or invented.
Philip Ripoche, the first expert to testify, felt obliged to describe this as: “A far-fetched, ambitious and laughable stream of verbosity” (“une logorrhée fantaisiste, ambitieuse et risible”).
The other expert, Bernard Denis-Laroque, confronted with the same passage, conceded that inventors sometimes had a tendency to overplay their inventions.
“There, clearly he went a bit too far,” he said (…il est allé un peu fort).
For more details and the full references, see The E-Meter Experts.
[ii] Many of these, admittedly, also feature in earlier fraud convictions against Scientologists in Lyon and Marseille in the 1990s. But compare Morice’s summing up in the original trial to my analysis of the judgment and you will see the fruits of his work.
[iii] This was a reference to la Fédération nationale des victimes d'accidents collectifs, or Fenvac. They were refused because although they had been set up in 1994, it was only recently that they had decided to expand their role to representing the victims of terrorism in court. For this they had recruited Françoise Rudetzki, herself badly wounded in a 1985 terrorist attack who had founded SOS Attentats to get better support for people caught up in such attacks. She had only dissolved that organisation in September 2008.
The court in that case had ruled that the law required Fenvac to have been active in its role of representing terrorism victims for at least five years before it could act as plaintiffs in a court case – and they had only adopted that role a few months earlier. The defence in the Scientology case argued that the same objection held in this case: UNADFI may have changed its statutes, but only recently. So, they argued, if the court granted UNADFI its request, it would effectively be stripping the Scientologists of their rights as defendants – rights that even Carlos had been granted.
[iv] For more on Picard and why Scientology detests her so much, see my report on her testimony at the original trial. The defence also took a passing swipe at Georges Fenech, the head of MIVILUDES and another of Scientology's bête noires. Fenech acquired his expertise in this field when he acted as investigating magistrate in the 1990s in the manslaughter and fraud case brought in Lyon over the suicide of Patrice Vic, which ended in multiple convictions.
[v] Curiously, as some defence lawyers argued for the separation of powers, one made use of a comment by Emmanuelle Mignon, who in 2008, when she chief of President Nicolas Sarkozy's cabinet, described the question of cults as a “non-problem” to argue that UNADFI’s presence was superfluous. (There was no mention though, of the storm of protest this comment provoked and Mignon’s subsequent departure from her post a few months later. For more on this see my review of Emmanuel Fansten's book, Scientologie: autopsie d’une secte d’Etat.)
[vi] One reason the bâtonnier has a certain standing is because he or she is elected by their peers. They mediate disputes not just between courtroom lawyers, as in this case, but between lawyers between lawyers and their clients. It is the bâtonnier’s job to knock heads together to get a solution. For more details on their role see this page on the Order of Paris Lawyers website (in French only).