By Michael Roberts
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By Patricia Calhoun
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By Michael Roberts
Six months ago, noting that the stress of the litigation appeared to be taking its toll on Penny's condition, Judge Kane directed both sides to find a way to excuse him from the case. "It's indecent of people to keep you involved," he told Penny. But at this writing, the attorneys are still wrangling over stipulations that would take Penny out of the crossfire; RTC's attorneys say they don't want Wollersheim to be able to shift blame to an "empty chair," but Wollersheim contends that the church is trying to foment dissension between him and Penny's supporters for their own gain.
"Bob is my friend," Wollersheim says. "He should have been out of this case right away. His memory was functionally gone for testifying quite a while ago; I read one of his depositions, and I was ashamed of myself, that I didn't demand that Bob be released. It took the judge to demand it. But Bob wanted to be involved. What I'm trying to do is protect Bob Penny and his heirs so that when this is all over and Scientology and their attorneys have to pay millions for the bullshit they've done, Bob and his kids will benefit."
Contacted at his home, Penny says he's "pretty much unconscious" and hands the phone to a friend, who confirms that Penny wants out of the case and has nothing to do with FACTNet's current activities. The friend also vouches for the accuracy of an article that appeared in the online newsletter Biased Journalism, which stated that Penny disagreed with Lerma and Wollersheim about legal strategy and supported Faegre & Benson's handling of the case.
"Scientology's intelligence operatives try to make a great deal out of situations that don't exist," Wollersheim says. "They know they can't go into court with us, so they're trying to create dissension so people won't donate to us. A lot of this stuff that's come out, it's either completely false or it's a small situation made to look like a big one. Working in a nonprofit under constant security threat, the board of directors are going to get into regular conflicts. But we've always worked them out."
Lerma points out that FACTNet has assembled a diverse group of advisory boardmembers--including entertainer Steve Allen and noted psychologist and cult critic Margaret Singer--and he says the organization is actively recruiting new directors.
"You know anyone who wants to be on the board?" he asks.
FACTNet's new "dream team" of lawyers is headed by Graham Berry, a New Zealand-born, Los Angeles-based attorney who has worked with Wollersheim on other litigation against the Church of Scientology. Church attorneys fought his appearance as defense counsel in the case, contending that Berry, one of the attorneys who'd defended Steve Fishman, was the culprit who had placed Hubbard's secret writings in an open court file and thus was a "necessary witness" in the FACTNet suit. Berry denied this, and Judge Kane ruled he could represent FACTNet.
In the past Berry has proven to be no small irritant to Scientology's defenders. Recently he became involved in the case of Jason Scott, who was awarded more than $5 million in damages against the Cult Awareness Network and various individuals involved in an attempted "deprogramming" of Scott. The judgment signaled the demise of CAN, one of Scientology's sharpest critics, which filed for bankruptcy.
Scott had been represented in the case by Kendrick Moxon, an attorney who handles extensive legal work for the Church of Scientology. But after the case was over, Scott complained that he hadn't received any money from the judgment--even though another Scientology attorney acquired CAN's name, phone number and other assets in the bankruptcy. Scott has since dismissed Moxon and hired one of his most combative opponents--Graham Berry.
Berry views the FACTNet suit as a key turning point in the long, litigious struggle between Scientology and its critics. "I believe this is the mother of all Scientology cases," he says. "If Wollersheim, after fifteen years, is unable to collect a judgment against this organization, what hope is there for anyone else to obtain recompense and justice?"
Since Berry joined the FACTNet defense team, filings in the acrimonious case have become even more caustic, with both sides accusing each other of unethical conduct and threatening to seek sanctions or contempt rulings. In a letter to one of RTC's attorneys, Berry complained of investigators prying into the private lives of his clients and their circle of acquaintances and harassing FACTNet's attorneys and support staff.
"There is no way that you and various co-counsel can justify this outrageous and despicable harassment as a 'lawful investigation' of opposing counsel," he wrote. "You ignore your professional obligations in this regard at the peril of yourself and your law firm."
While denying any misconduct, Scientology's attorneys have, in turn, protested Berry's efforts to depose a long list of potential witnesses, from high-ranking church officials to Tom Cruise and John Travolta, whom Berry wants to interrogate regarding their "alleged psychotic breaks" while studying Advanced Technology materials. RTC attorney Todd Blakely has blasted Berry's insinuations about Hubbard's writings and their celebrity adherents as "hearsay, conjecture and vitriolic slanders."