Friday 16 December 2011

The appeal trial: preparing the ground

Even before its appeal opened, Scientology fought back against the 2009 fraud convictions with accusations of judicial bias and suggestions of political pressure.

There was a lot of talk during Scientology’s 2009 Paris trial for fraud and the illegal practice of pharmacy about the preserving the serenity of the debate.

Legal proceedings are in theory meant to shine a light on the events in question: the heat of vigorous debate, past a certain point, becomes counter-productive.

And yet, periodically, the proceedings would descend into bitter exchanges between the battery of defence lawyers and Maître Olivier Morice, the lawyer for one of the plaintiffs.

Maître Patrick Maisonneuve, the lawyer for Scientology’s Paris Celebrity Centre (l’Association spirituelle de l'Eglise de Scientologie (ASES)), had a particularly sharp turn of phrase. The defence’s star performer, his provocative asides had a combustible effect on Morice, who refused to let certain remarks pass unchallenged.

President of the Court, Judge Sophie-Hélène Château, was repeatedly obliged to intervene as Morice, Maisonneuve and various others members of the defence team exercised their considerable vocabularies on each other.

Eventually, the lawyers would recover their composure. They would wax lyrical about the dignity of the court, the need for serenity in the proceedings: then, within minutes, hours – a day perhaps at most – they would be at it again.

Finally however the trial was completed, the verdict announced and the sentences handed down en bonne et du forme: by the book – or so it seemed at the time.

Two years later however, as the trial on appeal approached, the defence was challenging not just the original judgment but also the general climate in which the appeal would be taking place.

Already in June 2011, four months before the appeal proceedings were due to start, they had announced they were suing the French state for a million euros over a controversy that had its roots in the original trial.

Lead prosecutor Maud Morel-Coujard had called for the dissolution of the two Scientology organisations on trial, relying on a law that provided for this penalty in the case of an organisation found guilty of organised fraud.

The problem was that this particular penalty no longer existed: just weeks before the start of the trial, the law in question had been modified.

The crucial article of the criminal code was deleted on May 12, part of a complex batch of amendments to the law that deputies had voted through – which is why it initially went unnoticed by most observers.
News of the change only broke in September 2009 – three months after the prosecutors had delivered their closing speech and several weeks before the judgment was due.

The revelation provoked an outraged response not just from Scientology’s critics but from two unions representing the legal profession: for some, there was more than a whiff of conspiracy in the air.

Government spokesmen insisted the change was nothing more than a mistake and the article in question was quickly reinstated. But that was too late for it to be applied in this trial.

Whatever had happened – however it had come to pass – most observers had concluded that the immediate beneficiary had been Scientology. But in the lawsuit they filed against the French state, Scientology portrayed itself as the injured party.

In its statement announcing the action, it recalled that the original position of the prosecutor’s office – after an eight-year investigation – had been that there was no case to answer.

An Scientology spokesman said that with the trial producing nothing new in what was already an empty dossier, “… a prosecutor takes it upon herself to call for an illegal penalty, pulled out of the hat, in total contradiction with the written conclusions of the prosecutor.

“I have strong doubts as to her impartiality…,” the unnamed spokesman added.[1]

This was laying it on a bit thick.

Cui bono?

It was certainly true that the initial position of the prosecutor’s office had been that there was no case to answer. But the investigating magistrate had thought differently – as was his right – and it was he who had drawn up the charges and sent them for trial.

Similarly, the trial prosecutors – Coujard, assisted by colleague Nicolas Baïetto – were perfectly at liberty to take their own view of the affair. And it quickly became clear that they did not share their colleague’s position.

Coujard’s call for the two Scientology associations on trial to be dissolved had made headline news at the time – headlines that certainly made uncomfortable reading for the movement.

Now they were accusing her of “faute lourde … erreur grossière” – in effect, serious misconduct. And since the law did not allow them to go after her personally, they were pursuing the state to get satisfaction.

But Coujard had recommended the use of a penalty which, until just a few weeks before the trial, had been a legitimate part of the legal arsenal at her disposal. If she had been caught out by the change to the law, she was far from being the only one.

There was no conceivable advantage to the prosecutor in calling for a penalty that no longer existed. The whole affair had, to put it mildly, been an embarrassment for them.

To question her professional integrity then was at best disingenuous. Indeed, if it was a question of cui bono – who had benefitted most from this fiasco – for most observers the answer was clearly Scientology.

Soon after the news broke in September 2009, the French news weekly Le Point reported that Scientology had known about the change in the law at a very early stage.

Le Point quoted a July 2009 email exchange between William C. Walsh, one of Scientology’s US lawyers, and a journalist from the Wall Street Journal. In it, Walsh had pointed out the crucial change in the law missed by the prosecutors.

Walsh said he had been informed of the change in the law just after the prosecutors had made their closing argument calling for dissolution.

So, as the magazine put it in its headline: “Scientology knew it was untouchable”.[2]

Maisonneuve himself told Le Point that a colleague had spotted the change in the law even before the prosecutors had presented their closing arguments.

Asked why he hadn’t dropped this bombshell when the prosecutors had called for the now non-existent penalty to be applied, he pointed out that they had been calling for an acquittal, not pleading mitigation.

“We didn’t want to make any publicity until the judgment,” he added.

Maisonneuve dismissed as “grotesque” any suggestion that Scientology might somehow have had a hand in getting the law changed.

Scientology’s June 2011 statement made much the same point, if in rather more extravagant terms: they had had as much to do with this change in the law as the Christians did with the great fire of Rome in AD 64, they declared.[3]

Far being beneficiaries of this fiasco then, the Scientologists presented themselves as victims of the political and media storm the controversy had generated.

This fevered, uninformed speculation had poisoned the atmosphere against the movement to such an extent that it was impossible for the movement to get a fair trial, they argued. [4]

'Political pressure'

A few weeks before the appeal was due to start Scientology produced what they said was fresh evidence to support their case that the dice were being loaded against them.

This time the culprit was a justice ministry circular, published in September, on “…vigilance and the struggle against cult-like tendencies”.[5]

The five-page circular, addressed to prosecutors and judges, was a review of the legal territory regarding cults – and a reminder of the legal remedies available to the courts.

It listed several offences the courts should be aware of in the context of cults, including fraud, abuse of confidence, extortion and manslaughter.[6]

The document made no mention of Scientology.

But for the movement's leaders, preparing to appeal organised fraud convictions against two of its main organisations in France, it was still too close to home: they denounced the document as an attempt by the executive to tip the scales of justice against them.

In a statement issued on November 3, the day the trial started, they announced that they had requested the case be pushed back in the calendar to ensure the court’s independence.

The ministry circular had “pre-condemned the Church, without naming it,” the statement said.[7]

Scientology blamed the circular Miviludes, the government’s watchdog on cult abuses, attached to the prime minister’s office.

The executive arm of the state was trying to interfere with the judicial process, Scientology argued: the serenity of judicial proceedings had been violated.

“For the defence lawyers, the court cannot serenely examine the case under such executive pressure, brought about by Miviludes,” the statement said. [8]

The pressure from the executive, said Maître Gérard Ducrey for Scientology, threatened to “…throw to the lions the men and women whose only wrong is to have dedicated themselves to a faith of which Miviludes disapproves.”

Scientology vowed to expose both the emptiness of the case against it and the executive pressure designed to shore up the “incoherence” of the charges against it.[9]

In the event, the trial went ahead as originally scheduled – and at no point did the defence even attempt to address the substance of the prosecution case.

[1] The Church of Scientology takes the French State to Court”: Scientology statement, June 3, 2011.
[2]La Scientologie se savait intouchable” (“Scientology knew it was untouchable”) Le Point, September 10, 2009.
[3] The emperor Nero blamed the fire on the Christians to justify a campaign of persecution against them.
[4] For a more detailed treatment of this controversy, see my earlier posting, The Great Escape?.
[5] You can find the Circulaire de politique pénale du 19 septembre 2011 relative à la vigilance et la lutte contre les dérives sectaires at the French justice ministry’s website, here. There is no legal definition for cults in France, hence the reference to “cult-like tendencies”.
[6] The offences are listed at the bottom of page one and the top of page two of the circular.
[8] It may have been the reference to homicide involontaire – manslaughter – that triggered Scientology’s angry response to the circular. In 1996, a leading Scientologist was convicted of manslaughter over the 1988 suicide of Scientologist Patrice Vic. The court found that his hard-sell pressure on Vic had contributed to his suicide. Several other Scientologists were convicted on fraud, or fraud-related charges. The investigating magistrate in the case was Georges Fenech, who got the case to trial despite stiff resistance from Scientology’s lawyers. Fenech now heads up Miviludes.
[9] The quote from Maître Ducrey comes from the November 3 statement.

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