Friday 30 March 2012

The Fallout

Leading opponents of Scientology say the Paris appeal court convictions of two of its organisations mark the beginning of the end for the movement in France. It is no idle threat.

The fallout from the Paris Court of Appeal’s ruling against Scientology was not long in coming.

On Thursday, February 2, the court confirmed the convictions for organised fraud of two Scientology organisations, the Celebrity Centre and Scientologie Espace Librairie its books outlet.

Within hours, the mayor of the 17th arrondissement, where the Celebrity Centre is based, was calling on Interior Minister Claude Guéant to look at ways of shutting it down.

Brigitte Kuster welcomed the appeal court judgment against the organisation and five of its leading members in a statement posted on her website.

The court had clearly brought to light the cult-like activities the Paris branch of the movement had practised against some of its members, she wrote.

The ruling “…should be an major step towards banning the cult, pure and simple,” she added.

In the meantime, she wrote, with the Scientology’s appeal to the Cour de Cassation pending, she asked the government to look at ways of closing the Celebrity Centre on the grounds that “it constitutes, in itself, a form of dangerous proselytism.”

To that end, said the statement, she had contacted the interior minister.

This may turn out to be nothing more than a bit of opportunistic gesture politics: it is difficult to see on what grounds the centre could legitimately be closed – for the moment at least.

But should Scientology be convicted again, the laws already exist in France to ban it completely, as two leading critics of the movement have made clear.

Immediately after Judge Claudine Forkel read out the Court of the Appeal’s judgment last Thursday, Olivier Morice, lawyer for French counter-cult group UNADFI, stepped out of the courtroom to face the TV cameras.

What was significant about this ruling was that Scientology organisations had been convicted of organised fraud: in previous trials in the 1990s only individual Scientologists were convicted because back then the law did not provide for anything more.

Now, he said, with other cases against Scientology being prepared, other convictions a real possibility, the possibility of the movement being banned was in sight.

George Fenech, the head of MIVILUDES, the government body charged with monitoring cult-like activities, drew a similar conclusion. Speaking a few hours after the appeal court verdict, he said the judgment marked the beginning of the end of the movement in France.

This was more than just idle talk.

France’s cult trauma

To understand why the law in France evolved as it did, you need a little context.

French attitudes to the issue of cults were transformed by the shock of the Solar Temple massacres of the mid-1990s.

French nationals were among the first wave of killings, in Canada and Switzerland in 1994 53 people died.

Then on December 23, 1995, the charred remains of 16 people were found in a forest clearing at Vercors in southeast France. Among the victims were three children, aged two, four and seven.

The manner in which they had died – and the fact that children were among the victims – made a nonsense of any talk of ritual suicide. In France, many of the victims had been drugged and suffered multiple shot wounds; the victims in Switzerland were also shot, while in Canada some of the dead had been stabbed death.

Also in Canada, investigators found the body of a three-month old baby stuffed behind a radiator at one of the cult’s villas.[i]

It was in this context that thinking hardened towards any fringe group applying totalitarian values to its members while operating within the relative freedom of an open society.

In 1996, French deputies considered a bill that would allow the government to close any organisation considered cult-like if it had been convicted on several occasions of offences, such as fraud, illegal practice of medicine and abuse of confidence.

That bill failed however in the face of objections that this was handing too much power to the politicians: it was too easily open to abuse.

The 2001 About-Picard Law revisited the idea. This time however, instead of granting these powers to the executive, it gave them to the courts.

Its supporters argued that the checks and balances offered by the judicial process, the testing of evidence and law, was enough to answer the civil liberties objection.

And that convinced France’s elected politicians: for it is worth noting that however much the law has been criticised – in France and abroad – French senators gave it their unanimous backing.

The About-Picard law operated in part by extending the range of existing laws.

It was already possible to dissolve some organisations, such as companies, for criminal offences, due to a law dating back to 1994. The About-Picard law extended its reach to a broader range of offences that included those typically relevant in the context of cult-like activities: fraud, abuse of confidence and the illegal practice of medicine or pharmacy.[ii]

And as well as giving the criminal courts the power to dissolve an organisation, it also created the possibility of a similar application through the civil courts.

This would apply to an organisation whose activities were aimed at “…creating, maintaining or exploiting the psychological or physical subjection of people”.

Here too however, the organisation in question would have had to have been convicted on at least two occasions of any of the relevant offences.[iii]

The law provided for heavy fines – and jail terms of up to two years – where someone tried to set up an organisation under a different guise after it had been dissolved.

But any court decision to dissolve a movement, whether by the criminal or civil route, would be subject to the full appeals procedure provided for by the courts.

A “double Sword of Damocles”

Where does this leave Scientology?

In a very difficult position according to lawyer Hervé Machi the current general secretary of MIVILUDES.

Machi, having explained the provisions of the law set out above, summed up Scientology’s situation in this way.

If in the future Scientology as an organisation is convicted of a second criminal offence then it faces the possibility of being dissolved by the criminal court that convicts it.

The criminal court is not obliged to apply this ultimate sanction of course – and of course any such sentence would be subject to the usual appeals procedure.

But if a criminal court convicted a Scientology organisation without ordering dissolution, an interested party could still apply to the civil courts. Citing the twin criminal convictions, they could ask for the organisation concerned to be shut down.

“So you can say now that the Church of Scientology has a double Sword of Damocles over its head,” said Machi.

The obvious question then is who counts as an interested party so far as recourse to the civil option of dissolution is concerned: according to Machi, it would not have to be a group recognised as a plaintiff in a criminal case.

Thus UNADFI, which failed in its bid to be accepted as such in this last case, could make the request: so could MIVILUDES.

Presumably then, so could Brigitte Kuster, the mayor of Paris’ 17th arrondissement, where the Celebrity Centre – for the moment at least – has its home.

All this of course raises the question of whether this is the best way to deal with Scientology’s excesses or a case of using a sledgehammer to crack a walnut – a fairly tough nut, admittedly.


[i] Some investigations into the Solar Temple affair have seen more than just a cult-related massacres. French film-maker Yves Boisset’s documentary Les mystères sanglants de l’Ordre du Temple Solaire suggests that, far from it being a purely cultic affair, the Solar Temple deaths were linked to international arms-trafficking and money laundering. For a critique of Boisset’s theory, which also implicates the French state, see Arnaud Palisson’s analysis, “L’Ordre du Temple Solaire et la théorie du complot : Les “X-Files” d’Yves Boisset” at the intelligence-related blog Rapports Minoritaires (you can find an English version at the Google-translated version of the site here).
[ii] This process of extension applies not just to a group regarded as a cult, but to any organisation found criminally responsible for any of the listed offences.
[iii] The About-Picard Law on reinforcing the prevention and repression of cult-like movements that undermine human rights and fundamental freedoms. The offences listed cover those that put people in physical danger or restrict their freedom or endanger children; also illegal exercise of medicine or pharmacy; fraud and deceptive advertising. The convictions last week against Scientology were for organised fraud and the illegal practice of pharmacy. For an illuminating summary of the law see the following legal commentary, written in 2004, at the Miviludes site (in French).

Friday 16 March 2012

Now We Are Three

When Infinite Complacency launched three years ago, mainstream news coverage of Scientology consisted mainly of celebrity gossip and jokes about their sci-fi cosmology. Today, the real issues are finally getting aired.

Something quite remarkable happened in the British press last month: Britain's two top-selling dailies ran stories about the violence and abuse that is rife at the top of Scientology.

The Sun and The Daily Mail both reported the court testimony of Debbie Cook, a former senior executive in Scientology's elite cadre, the Sea Org. Cook was denouncing the movement's leader David Miscavige.i

Cook told a Texas court that when in 2007 she fell from grace with Miscavige she was locked up with more than a hundred other executives in a trailer at Int Base, the movement's high-security compound in Hemet, California. She described how:
  • they had to spend night after night in sleeping bags on ant-infested floors;
  • Miscavige had the electricity cut as daytime temperatures soared past 100 degrees;
  • they were forced to scream at each other in confessional sessions that often turned violent;
  • the windows were barred and access in and out was covered by security guards;
  • she witnessed Miscavige verbally abuse and physically attack imprisoned executives – and saw him order others to carry out similar assaults.
This was not, it should be said, an investigative coup by either paper. They were simply following up coverage a few days earlier by Florida's Tampa Bay Times.

The Daily Mail even ran the video of Cook's court testimony with the Tampa Bay Times logo still attached.ii

This nevertheless represents a significant development: for the very fact that British papers are finally running these stories is an indication of just how much trouble Scientology is in.

Britain's libel laws are notoriously oppressive and for years the print and broadcast media there have been extremely nervous of Scientology's litigious reputation.iii

Panorama for example – BBC television's flagship investigative programme – had all the necessary elements two years ago, but said nothing about Miscavige's assaults on his staff.

When in September 2010 Panorama ran the second of its most recent investigations into the movement, reporter John Sweeney interviewed at least three victims of Miscavige's violence: Marc Headley, Marty Rathbun and Mike Rinder.

He also spoke to another Int Base veteran, Amy Scobee, who had witnessed Miscavige punching and kicking fellow staffers.

Headley, his wife Claire and another Sea Org member, Laura DeCrescenzo, had all filed lawsuits detailing the abuse at Int. Base the previous year.

But while there was a lot of damning material in the Panorama documentary there was not a word about the beatings Miscavige is routinely handing out to his subordinates. Presumably Sweeney could not get it past the lawyers.iv

Launching the site

Three years ago today, I launched Infinite Complacency to chart the violence and abuse at the heart of Scientology. It was, I confess, something of a last resort.

I had failed to find a publisher for my book project and spent 2008 fruitlessly trying to break the Int Base abuse story to newspapers, magazines and TV production companies in several countries.

But editors were still wary of Scientology's reputation for attack-dog litigation tactics – and I had no profile as an investigative journalist.

So on March 16, 2009 I launched the site, determined to get something out before the story went mainstream – not a moment too soon, as it turned out.v

On June 21, 2009 – three months after Infinite Complacency launched – the St Petersburg Times launched its own far more extensive exposé of how Miscavige had transformed Int Base into something resembling a Chinese thought reform programme.

“The Truth Rundown”, initially a three-part investigation by Thomas C. Tobin and Joe Childs, snowballed into a Pulitzer-nominated series – and suddenly it was open season on Scientology in the U.S.

Coverage quickly moved beyond the usual celebrity gossip and cheap cracks about Xenu, the evil Galactic overlord at the heart of Scientology's “secret” space opera cosmology. Now newspapers and broadcasters were interviewing former Sea Org members.

They described the verbal and physical abuse they been subjected to while inside Scientology; they explained how hard it was to break free of the movement; and they spoke of the price they had had to pay as loved ones still inside Scientology broke off contact.

Since I could not compete with this level of coverage stateside, I turned my attention to another aspect of the story: a major fraud trial due to start in Paris that autumn.

Two aspects of the case made it particularly interesting.

First, Scientology as an organisation had been charged, not just individual executives.

Secondly, there was speculation that the movement might actually be banned if convicted, though as things turned out, that proved impossible – a story in itself.vii

Infinite Complacency provided detailed reports on the case, from the original trial all the way through to last month's appeal court convictions, covering developments inside and outside the courtroom.

Given that some observers believe the French investigation and prosecution could inform other cases pending against the movement – notably in Belgium and Germany – it was time well spent.viii

Then, just weeks after the original Paris trial convictions in October 2009, a new front opened in the battle against Scientology.

Xenophon's campaign

In Australia, Senator Nick Xenophon launched a fierce attack on the movement in a November 2009 speech to the Senate.

Citing harrowing details from several former members, he denounced the abuse to which they had been subjected – and which in some cases they had themselves inflicted on Scientologists while inside.

“There are allegations of false imprisonment, coerced abortions, embezzlement of church funds, physical violence, intimidation, blackmail and the widespread and deliberate abuse of information obtained by the organisation,” Xenophon told his fellow senators.

“It is alleged that information about suspicious deaths and child abuse has been destroyed, and one follower has admitted he was coerced by the organisation into perjuring himself during investigations into the deaths of his two daughters.

“These victims of Scientology claim it is an abusive, manipulative, violent and criminal organisation, and that criminality is condoned at the highest levels.”

Since Xenophon had filed redacted copies of the letter to the Senate, I was able to get hold of copies, post them online and provide a detailed account of their contents.

In my summary of the letters, I tried at all times to show how the allegations by these former members in Australia matched those being made by their U.S. counterparts.

Equally striking was the degree to which these stories echoed accounts of the abuses documented during the first three decades of the movement, when founder L. Ron Hubbard was still in charge.

Affidavits from former associates of Hubbard and a number of court cases have put Hubbard's responsibility for the abusive nature of Scientology beyond any doubt: it cannot all be laid at Miscavige's door.

In March 2010, I reported on a speech in Hamburg by Hana Eltringham, who had worked alongside Hubbard during the first years of the Sea Org. Her testimony was a particularly damning indictment of the founder.

Xenophon's campaign has generated an explosion of media coverage in Australia and looks likely to deprive Scientology of the tax breaks it has for years enjoyed there.

It led Australia's Fair Work Ombudsman to investigate the movement's employment practices: its September 2011 report put Scientology on notice that it could not go on treating staffers as wage slaves.

Xenophon's campaign also prompted a March 2010 documentary by ABC's Four Corners team, which among other things highlighted the abusive employment practices inside the movement.ix

That is what persuaded a major Australian law firm, Slater & Gordon, to start work on a class action lawsuit against the movement.

Finally, the allegations in one letter sent to Xenophon have led to Jan Eastgate, a senior figure in Scientology, being charged with perverting the course of justice for allegedly having tried to cover the sexual abuse of an 11-year-old girl by a Scientologist. That case is still unresolved.x

Taking stock

Three years on from the first in the latest wave of lawsuits targetting Scientology, Miscavige is under fire on all sides.xi

Two weeks into launching this site, I paid tribute to those Int Base veterans who had led the way in denouncing the abusive regime there: Jeff Hawkins, John Peeler, Maureen Bolstad and Marc Headley.

Some of them have paid a heavy price in the loss of friends and family still inside the movement, forced to shun them because of Scientology's destructive disconnection policy.

In the same piece I predicted that other defectors would follow their example – a fairly safe bet given what I already knew was in the pipeline.

But I did not anticipate how quickly these stories would be picked up by the mainstream news media in the United States.

I did not realize that the French courts would deal such a body blow to the movement, with a conviction that could have ramifications beyond the Republic's borders.

And I certainly didn't see the Battle of Xenophon coming, in which a single Australian politician set off an avalanche that is threatening to engulf the movement Down Under.

I named this website Infinite Complacency after a passage from the beginning of H.G. Wells' The War of the Worlds:

With infinite complacency men went to and fro over this globe about their little affairs, serene in their assurance of their empire over matter.

I'll leave it for you to work out how that applies in the context of Scientology, but here's one thing to consider. (Attention: spoiler!)

The seemingly all-conquering Martians in Wells' great adventure are, in the end, vanquished by something small, insignificant and invisible: simple Earth-bound bacteria – a virus.

Here's to the next three years.
According to the latest Audit Bureau of Circulation (ABC) figures for February, The Sun's, circulation stood at 2,582,301 in February.
The Daily Mail registered 1,945,496 – but its website attracted more than 45.3 million visitors in December making it the most popular newspaper website in the world according to a report in January from Buzzfeed citing figures from online tracking service ComScore.
iiEx-Clearwater Scientology officer Debbie Cook testifies she was put in 'The Hole',' abused for weeks” the Tampa Bay Times, February 10, 2012. The Times, until recently known as the St Petersburg Times, has been covering Scientology extensively since the mid-1970s when the movement set up one of its main operations in Clearwater, Florida. It won a Pulitzer prize for its work on the movement in 1980.
I have not had time to cover the Debbie Cook case but the Times - and Tony Ortega at Village Voice – are all over it.
iii Of course court proceedings such as Cook's testimony are privileged, so accurate and timely news coverage of such events enjoys a degree of legal protection, as The Sun and The Daily Mail know full well. The legal protection afforded by privileged proceedings is one reason this website focuses on legal cases, speeches to parliament and official reports.
iv When I say Sweeney's two investigations were Panorama's most recent investigations it is because Panorama did an excellent programme on the movement back in 1987: Scientology: The Road to Total Freedom?”. Jean-Luc Barbier, at Anti-Scientologie, has everything you ever wanted to know about the second of Sweeney's Panorama documentaries on Scientology.
v I had spent the previous two years investigating the horror stories leaking out about what went on at Int Base with the help of a handful of key witnesses: Jeff Hawkins and John Peeler were among the first to go on the record.
The first 14 entries in the Violence and Abuse in the Sea Org section here (see the list right in the right-hand column) form the core of that initial investigation, handily supplemented with reports on the Headley and Decrescenzo lawsuits that were launched around the same time. In April 2009, I also started telling Int Base veteran Maureen Bolstad's Story. It is a tale I still have to finish. Here is the first chapter in that section.
It should be noted however, that the relevant message boards – such as Andreas Heldal-Lund's Operation Clambake and Why We Protest (Anonymous) – had been reporting on this for years already. The main source of information at the time was Marc Headley, who in those days was posting pseudonymously as BlownforGood at Clambake. His first reference to the beatings at Int Base was, I think, this February 2006 posting.
Alternative media outlets such as Tom Smith's talk show The Edge on Hawk Radio had also begun interviewing Int Base escapees. Smith talked to Jefferson Hawkins, for example, in March 2008: you can hear an excerpt here.
viThe Truth Rundown”, Tampa Bay Times (formerly the St Petersburg Times), launched June 21, 2009.
vii The prosecution had called for the dissolution of the two Scientology organisations on trial, relying on a law that provided for this penalty against organisations convicted of organised fraud.
Nobody had noticed however that this penalty had been deleted from the criminal code on May 12 – just weeks before the start of the trial – buried in a complex batch of amendments voted through by deputies.
When the news finally broke in September 2009 – just weeks before the verdict was due – there was outrage not just from Scientology’s critics but from two unions representing the legal profession.
The government insisted it was a simple mistake, one that was quickly corrected – too late however, for the penalty to be applied in this case.
Whatever the suspicions expressed by various commentators, it should be stressed that nobody has been able to establish that this was anything other than a cock-up, rather than something more sinister. For more details see The Great Escape?”, my account of the controversy written at the time the story broke.
viii This is not just the view of Olivier Morice, the lawyer who represented one of the plaintiffs in the Paris trial. Arnaud Palisson, a former officer with France's internal security service Renseignments Généraux wrote recently in his French-language blog that he personally passed on his doctoral thesis on how best to prosecute Scientology to a Belgian investigating magistrate handling a case due up before the courts there. See his February 7 posting at Rapports Minoritaires, or mnql's” English translation at Why We Protest.
ixThe Ex-Files went out on March 8, 2010, as part of ABC's Four Corners investigative series. Presenter Quentin McDermott contacted me for help on the French side of the story, but they eventually decided to go with the developments in Australia and the United States.
x Reporters from Australia's Lateline news programme (ABC) followed up the allegations in a May 19, 2010 story (she was charged in June of the following year). The report itself appears to have been removed from their website, presumably because of the pending trial, but here is their latest update on the court case, from February 7, 2012. Eastgate has so far made no plea to the charges against her, but in a media statement she described them as “egregiously false”.
xi Attorney Barry Van Sickle filed Marc Headley's lawsuit, the first of the recent wave against Scientology on January 5, 2009.

Thursday 1 March 2012

Brennan case goes to appeal

Did Scientology’s dogmatic hatred of psychiatry contribute to the death of a vulnerable, 20-year-old? That is the central question in a lawsuit filed to the Florida appeal court last month.

Five years after the death of a mentally troubled 20-year-old student while visiting his Scientologist father, a wrongful death lawsuit brought by his mother is back in court.

Kyle Brennan was found dead, shot in the head with a bullet from his father’s 357 Magnum pistol. He died at his father’s apartment in Clearwater Florida, on or around February 16, 2007.

On February 16 this year, Florida attorney Luke Lirot filed the latest papers on behalf of Kyle’s mother Victoria Britton.

He was appealing a district court’s dismissal of the lawsuit against Thomas Brennan – Kyle’s Scientologist father – two other Scientologists and the Scientology’s Florida operation.

At issue is whether Scientology’s dogmatic hatred of psychiatry and psychiatric drugs led to Kyle being deprived of medication vital to his mental and emotional stability – but also whether the judge had the right to throw out the case without letting a jury consider the evidence.

Lirot has come late to the case and, as he makes clear in his appeal filing, by the time he arrived it had already acquired the procedural stigmata associated with Scientology-related litigation.

He replaced colleague Ken Dandar, best known for having represented the estate of Lisa McPherson in a successful lawsuit against Scientology.

Dandar was forced to quit the lawsuit after objections by Scientology, a drawn-out battle that involved a dispute between two judges, one of whom fined Dandar and threatened to slap criminal contempt charges on him.

Six months after Dandar left the case – and Lirot took over –District Court Judge Steven D. Merryday made his ruling last December dismissing the lawsuit.

A month later, as he threw out a Scientology motion for sanctions against Dandar, the same judge had harsh words for both sides in the dispute.

But the basic facts of the case – as set out by Lirot in his appeal filing – are as follows.[i]

Kyle Brennan’s death

In 2007, Kyle was 20 years old, in his second year at a community college. His parents, Victoria Britton and Thomas Brennan, were divorced and Kyle lived mainly with his mother in Charlottesville, Virginia.

In the weeks leading up to his death, Kyle had been travelling in Iowa, California and Hawaii.

It was in Hawaii that he ran into trouble, getting assaulted on February 5, 2007, an incident that was the subject of a police report. Shortly afterwards he flew on to visit his father, Thomas Brennan, in Clearwater, Florida.

Kyle’s father is a devoted Scientologist, and Clearwater is one of the main centres for Scientology in the United States. The movement promotes it as somewhere loyal members can received top-level auditing, or therapy, from the movement’s best-trained practitioners.

Kyle had mental health problems. His psychiatrist Stephen McNamara, who had treated him for depression, had prescribed him the psychiatric drug Lexapro to help him manage his condition.

Before arriving in Clearwater, Kyle had told his uncle, Gary Robinson, that he had been taking his medication regularly and would continue to do so.

But that posed a problem for Thomas Brennan, Lirot argued.

Scientology reviles psychiatrists and psychologists as virtually the root of all evil. Their rejection of psychiatric drugs is just as vehement.

That meant that Thomas Brennan had what the movement refers to as an ethics, or disciplinary, issue to resolve – for no Scientologist in good standing is meant to associate with anyone receiving psychiatric treatment or taking psychiatric drugs.

Brennan reported his son’s visit to his counsellor Denise Gentile. (Gentile, née Miscavige, is the twin sister of Scientology’s leader David Miscavige.)

Denise Gentile phoned Kyle’s mother, Victoria Britton, in Virginia and tried to persuade her to have Kyle put into a Narconon programme.

Narconon is a drug-treatment programme run along principles established by Scientology founder L. Ron Hubbard.

A Narconon representative also contacted her and offered their services, said Lirot.

Victoria Britton made it quite clear she did not want Kyle coming off Lexapro as she knew that this could have a catastrophic effect on his mental health.

Gentile had by now informed a Scientology “ethics officer”, whose job it was to ensure that Thomas Brennan followed the movement’s rules, of the situation. This officer gave written instructions to Brennan to get his son out of his apartment.

"In compliance with the commands from the Scientology Ethics Officer, Thomas Brennan locked the prescription Lexapro in the trunk of his car and had his son pack his bags and strip his bed of linens,” wrote Lirot in his appeal brief.

Thomas Brennan then told Kyle's mother, Victoria Britton in Charlottesville, Virginia, that Kyle had to move out immediately.

“Within 24 hours, Kyle Brennan was found dead from a single shot from a .357 Magnum handgun that was left in an unsecured nightstand inside the father’s bedroom.” 

Lirot argued:

Thomas Brennan had a duty to his son, Kyle Brennan, as a mentally disabled social guest while Kyle resided with him in his apartment from February 7 to 16, 2007.

That duty was not to expose Kyle Brennan to unreasonable risk and to use reasonable care under the circumstances.

All Defendants assumed a duty under statutory and common law to use reasonable
care under the circumstances when they intervened and took control over the care and
treatment of Kyle Brennan, a mentally disabled adult.

First, they took away his antidepressant medicine, Lexapro. Second, they knew or should have known that Kyle should not be left alone and that Tom Brennan had a loaded 357 revolver accessible to Kyle.

These two independent actions breached the duties they owed to Kyle Brennan resulting in his death, so that it can be said, but for the reckless and intentional acts of these Defendants, the death would not have occurred.[ii]

In summary then, the lawsuit brought by Britton, Kyle’s mother, contends that the actions of Thomas Brennan – and the Scientologists who issued the orders he followed – brought about her son’s death.

It argues that Kyle was not only denied access to the drug he needed to maintain his mental stability, but a lethal weapon was left unsecured in the apartment where he was staying.

But a district court in Tampa, Florida, dismissed the case last December.

The district court’s dismissal

After summarizing the case set out by Britton, District Judge Steven D. Merryday, in his ruling, listed five points advanced by Scientology’s lawyers in defence of their clients.

In a joint defence for Thomas Brennan, the Gentiles and Church of Scientology Flag Service Organization, lawyers had argued that the plaintiff had no evidence to show or suggest that:

·        Kyle was consuming the Lexapro on a consistent basis necessary to obtain a therapeutic benefit;
·        The Lexapro was removed without Kyle’s permission;
·        Any defendant encouraged or assisted Kyle in committing suicide;
·        Any defendant gave him access to a loaded gun;
·        Kyle committed suicide for any reason other than his depression and paranoia.[iii]

Judge Merryday agreed, writing:

The plaintiff's claim of Scientology's complicity in, and responsibility for, Kyle's death remains a mere hypothesis that is without essential support based upon reasoned and direct inference from the available evidence.[iv]

Summing up his findings, he wrote:

Kyle Brennan was an attractive and bright but troubled young man, who died violently, by his own hand, and alone, barricaded in his father's apartment.

Plagued by emotional turbulence and mental instability, Kyle's brief life, especially the last year of his life, was tangled and traumatic both for Kyle and for his family and close friends.

Kyle's mother seeks by this action to establish that the organization, principles, and operatives of Scientology are responsible — in fact and in law — for the death of her son.

A practitioner of modern psychiatry treated Kyle for his psychological afflictions and prescribed a course of psychotropic medication. Modern psychiatry and psychotropic medication are anathema to Scientology. Kyle's father was an incipient practitioner of Scientology.

The fragile Kyle with his psychotropic medication, Kyle's father with his Scientology, and Scientology with its opposition to psychotropic medication approached one another in close proximity during the time of Kyle's suicide.

The plaintiff looks upon the proximity of Scientology to the death of her son and sees a causal link, sees the one brought about by the other.

After painstaking review, I conclude that the plaintiff's suspicion, although perhaps not impossible, is not anywhere evidenced in the record creates no genuine issue of material fact for reasoned determination by a jury. [v]

Conflicting accounts

But Lirot, in his appeal filing, argued that this was not Merryday’s call to make.

The District Court erred by making credibility determinations and rejecting “plausible inferences” that should have been left to a jury.[vi]

Among the facts in dispute are just what role the Gentiles played in the days running up to Kyle Brennan’s death.

Lirot’s appeal filing argued that under the influence of the higher-ranking Denise Gentile, Thomas Brennan had removed the Lexapro from his son’s possession, “without the knowledge and consent of his adult son” locking the drug in his truck.[vii]

Scientology, in a joint motion from all the defendants for summary judgment, looked at how often Kyle had been buying refills for his Lexapro: from that, it argued that he had clearly not been taking the drug on a regular basis, as prescribed – a claim disputed by Dandar.

Denise Gentile had suggested Narconon for Kyle because she feared he might be using illicit “street drugs”, the defence argued: neither she nor her husband had given any advice to Tom Brennan about Kyle’s use of Lexapro, it added.

Nor did the Gentiles tell Tom Brennan to take away his son’s medication, the defence added.

The defence also cited Thomas Brennan’s version of events: that Kyle had told him he hated using the drug and had handed it over to him of his own accord.[viii]

To help convince the court that Scientology would inevitably have micro-managed Thomas Brennan’s reaction to his son’s visit, Ken Dandar had submitted expert testimony from former Scientologist Lance Marcor.

Marcor had argued that Scientology’s doctrine on psychiatry and psychiatric drugs would have determined how Thomas Brennan responded to Kyle’s visit.

He also argued that his knowledge of Scientology’s extensive record-keeping told him that key documents that should have been submitted to the court were missing, lending support to the plaintiff’s contention that Scientology was engaged in a cover-up.[ix]

In the end however, Judge Merryday ruled that the plaintiff had no solid evidence with which to overturn the defendants’ account.

The record, including the proffered expert testimony, offers nothing on which to create a rationally triable issue one way or the other; the plaintiff's proposed history is merely possible but no more possible than several other possible histories, each of which exculpates Scientology and the other defendants,” the judge wrote. [x]

It was only to be expected that the accounts given by the opposing sides would differ in crucial respects.

But Lirot is suggesting that Judge Merryday overstepped the mark when he decided that the plaintiff could not muster enough evidence to stand up its case against Scientology.

Attorney Scott Pilutik, who has covered other Scientology-related lawsuits on his blog Reality Based Community, summed up Lirot’s objection this way:

"The essence of Lirot's argument is that Judge Merryday wrongly usurped the jury's role in deciding matters of fact at the summary judgment stage; a judge may only decide matters of law in a motion for summary judgment, and Merryday exceeded his authority at this stage by deciding matters of witness credibility and rejecting the jury's role in plausibly inferring the defendants' liability from the evidence presented."[xi]

A procedural marathon

Luke Lirot came to this case late, after the original attorney Ken Dandar was forced to withdraw.

Dandar of course is best known as the attorney who fought the lawsuit for the estate of Lisa McPherson, the 36-year-old Scientologist who in 1995 died in the custody of her fellow believers in Florida.

That case was finally settled out of court for an undisclosed sum in 2004 after a gruelling legal marathon.

Lirot only took on the Brennan case because of the lengthy campaign by Scientology to have Dandar kicked off it.

Dandar had filed the case on behalf of Victoria Britton in February 13, 2009: two years after Kyle Brennan’s death.

Scientology objected that as part of the settlement in the McPherson case, Dandar had agreed to take no part in any further litigation against Scientology. Dandar denied that there had been any such undertaking.

Unfortunately for him Senior Circuit Judge Robert Beach, who had presided over the McPherson case action, accepted Scientology’s argument. On June 10, 2009, Judge Beach ordered him off the case.

Dandar appealed to the Florida District Appeal Court and when that bid failed, Scientology moved to get Judge Beach’s ruling enforced.

By April 12, 2010, the judge had found Dandar in civil contempt.[xii] He ordered Dandar to pay Scientology $50,000 in damages, with another $1,000 a day in civil penalties against him as long as he refused to comply with the ruling to quit the case.

So Dandar presented an involuntary motion to withdraw as counsel to the District Court Judge Merryday. His client, Victoria Britton, argued that Dandar would be nigh-on impossible to replace given attorneys’ reluctance to take on Scientology in the courts.

On April 22, District Judge Steven Merryday accepted that argument, denying the motion to withdraw.

But that left Dandar caught between a rock and a hard place: for by now Judge Beach was thinking in terms criminal contempt.[xiii]

In October 2010 Judge Merryday stopped the sanctions against Dandar and slapped Judge Beach on the wrist for overstepping the mark. Judge Beach withdrew from the case.

But Scientology appealed Judge Merryday’s ruling – and the appeal court agreed that it was Judge Merryday who had overreached himself.

The appeal court wrote in its July 7, 2011 ruling:

The District Court’s concern about the ability of the Brennan Estate to secure other counsel was certainly understandable and commendable… The Court was not responsible for securing representation for the parties before it, however, and its jurisdiction to adjudicate the claim of the Brennan Estate was not dependent on its doing so.[xiv]

It overturned Judge Merryday’s ruling, which effectively confirmed that Dandar was off the case – though by this time he had handed over to Lirot.

After Judge Merryday threw out the case at the end of last year, Scientology renewed a bid to have sanctions applied against Dandar. They wanted him punished under Rule 11, which penalises lawyers who bring lawsuits that have no factual or legal basis.[xv]

The judge made it clear his patience had run out.

First, he pointed out that they had not given Dandar the legally required 21-day notice which would give him the opportunity to correct any alleged fault if he so required. And since he was no longer on the case he no longer had any power to remedy the situation.

But in any case, their first motion for sanctions had been rejected because it had no merit, he added.

And while may have been clear about what he saw as the weaknesses of the plaintiff’s case against Scientology, he had not concluded that it was baseless, the judge wrote.

The order granting summary judgment notes the pleading’s flaws, and Scientology is at pains to repeat the order’s critiques to the court. But, although the plaintiff’s case was built predominantly on compound inference and speculation, the plaintiff’s allegations, with one possible exception, were not so wholly and demonstrably baseless as to trigger Rule 11.[xvi]

Judge Merryday had clearly had his fill of the case and all the subsidiary litigation it had spawned.

This litigation, along with simultaneous and associated litigation in the state courts (described in excruciating detail elsewhere in this record), is the sort of “scorched earth” litigation that impairs and adulterates the better judgment and professionalism of counsel, involves the courts in tangled and exhausting disputes tangential to the main dispute, and causes a marked decline in the public’s confidence in the bench and the bar. The parties and their counsel should direct themselves to the necessary matters at hand and reject the temptation toward further provocation and retaliation, pursued either in over-zealous excess or as a tawdry litigation tactic designed as a general deterrent. Without reason to hope the parties and counsel will heed my advice but with knowledge that sanctions aplenty (and more) have attached elsewhere, I add nothing further to the sad folly of these parties’ aggravated relations.[xvii]

In other words: a plague on both your houses.

[i] The following account is from the Appelant’s corrected initial brief for The Estate of Kyle Brennan v. the Church of Scientology Flag Service Organization Inc., et al, Case no: 12-10024-AA, filed to the U.S. Court of Appeals, 11th Circuit on February 16, 2012. The bare bones of the case are set out between pages 3-6 of Lirot’s filing: the first four pages of the Statement of the Case and Facts.
[iii] Estate of Brennan v. Church of Scientology Flag Service Organization, Inc.; Denise Gentile; Gerald Gentile; and Thomas Brennan. December 6, 2011, Tampa, Florida, District Court summary judgment, Case No. 8:09-cv-264-T-23EAJ.
[vii] “…without the knowledge or consent”: page 7 of the Appelant’s corrected initial brief.
[viii] Defendants’ Joint Motion for Summary Judgment: my thanks to Luke Lirot for providing a copy.
[xi] Posting as Tikk at Why We Protest, the nerve centre of Anonymous’ campaign against Scientology’s abuses. His blog is Reality based community.
[xii] On February 19, 2010, Judge Beach rejected a move by Dandar to get the terms of the McPherson settlement agreement voided.
[xiii] According to one local media report, at one “inexplicably” closed hearing the judge had also threatened to revoke Dandar’s law license “something he has no power to do”. See “In Court with Scientology” an opinion piece in the Tampa Tribune, September 21, 2010.
[xiv] The US Court of Appeals, 11th Circuit, Case No. 10-14967. Estate of Kyle Thomas Brennan v Church of Scientology Flag Service Organization, Inc. D. C. Docket No. 8:09-cv-00264-SDM-EAJ. July 7, 2011 ruling (pages 17-18). While the appeal court expressed some sympathy with Judge Merryday’s objections to the sanctions imposed against Dandar it did not feel he had the power to block the ruling.
[xiii]Federal Rule of Civil Procedure 11 provides that a district court may sanction attorneys or parties who submit pleadings for an improper purpose or that contain frivolous arguments or arguments that have no evidentiary support.” From the Lectric Law Library.
[xvi] Page 4 of Judge Steven D. Merryday’s order denying 231 motion for sanctions, issued January 25, 2012. The ruling is also available here.
In a footnote to his ruling dismissing the lawsuit the previous month, Judge Merryday was scathing about one passage from the plaintiff’s original filing. It read: [O]n or about February 16, 2007, for reasons yet unknown to the [plaintiff], one or more of the defendants, knowing that Kyle Brennan was a disabled adult, negligently, recklessly, wantonly or wilfully, callously, and with total disregard for the rights and safety of Kyle Brennan placed, or provided access to, a loaded 357 Magnum pistol owned by Thomas Brennan, on or next to the bed of Kyle Brennan in the bedroom only occupied by Kyle Brennan in the apartment of Thomas Brennan.
“Excepting that Kyle's father owned a gun,” Judge Merryday noted, “no fact alleged in this paragraph appears in the record in this action. The allegation at least approaches sanctionable recklessness in pleading.” From District Court summary judgment, op. cit.
[xvii] From the fifth and final page of the order denying 231 motion for sanctions (op. cit.).