Response to Defense Motion to Dismiss the Lisa McPherson Criminal Case on Grounds of Religious Freedom Restoration Act

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT
IN AND FOR PINELLAS COUNTY, FLORIDA

vs.

CHURCH OF SCIENTOLOGY FLAG
SERVICE ORGANIZATION, INC

SPN: 01980179

RESPONSE TO DEFENSE MOTION TO DISMISS BASED UPON THE RELIGIOUS FREEDOM RESTORATION ACT

Comes now, Bernie McCabe, State Attorney for the Sixth Judicial Circuit of Florida, by and through his undersigned Assistant State Attorney, and hereby files this his Response to Defense Motion to Dismiss Based Upon the Religious Freedom Restoration Act, and as grounds therefore would show:

I. FACTS OF THE OFFENSE

A. LISA MCPHERSON.

Lisa McPherson was a thirty two year old Texas native who had been involved in Scientology for many years and who worked for a Clearwater business owned by other Scientologists. She had been had been in Clearwater and associated with the Church of Scientology Flag Service Organization, Inc. (CSFSO) since 1994. Records indicate that Lisa had spent between 50,000 and 100,000 dollars on self improvement courses and auditing' in the two years prior to her mental breakdown and death. She had a fear of insanity; both her father and brother had committed suicide. Despite 18 years as a Scientologist and expending large sums of money for "spiritual treatment," McPherson struggled with psychological problems throughout the last year of her life. During that year, Lisa had paid $58,000 for Scientology services, yet had allegedly suffered a partial "psychotic break" during the summer. Her account was debited over $20,000 for auditing services during July and August of 1995 alone. The defendant, nonetheless, confirmed at her September of 1995 "graduation" that she had reached the advanced state of "Clear." Clear is defined by Scientology doctrine as being that:

At the time of her death, Ms. McPherson's checking account balance was $140 and she had approximately $11 remaining in her savings account.

B. SCIENTOLOGY AS A RELIGION AND CSFSO AS A CHURCH.

The State acknowledges that although it originated as the secular activity of Dianetics, Scientology philosophy contains precepts such as reincarnation and the immortality of the spirit that are both metaphysical and religious in nature. Based upon this and other attributes of Scientology, Courts have found believers in Scientology to qualify for religious protection under the First Amendment. The State does not concede, however, that every precept or assertion in the vast library of works created by the prolific L. Ron Hubbard, Scientology's founder, to be religious tenets, beliefs or practices within constitutional or statutory protections.

Moreover, despite the inclusion of the word "church" in its corporate name, the State does not concede that the corporate defendant is coextensive with being the "Church of Scientology." The term "church' usually denotes the physical structure where religious worship occurs and has also come to refer to the body of believers It is clear that CSFSO equates with neither.

A multifaceted non-profit corporation owning numerous buildings in the Clearwater area including a hotel, restaurant and numerous housing facilities, the defendant engages in extensive revenue generating activity by providing self-improvement services for clients or adherents for substantial advance fees which it refers to as donations. The courses and materials cover a wide range of topics, many of which can be objectively described as secular in nature. CSFSO facilities sell lodging, food, publications, and assorted other items.

Under either its official corporate structure or the divisional management scheme imposed on it by Hubbard's teachings, neither the adherents nor clients who have participated in services provided by the corporation have any authority in its organization, employment decisions, or management and it is unclear if individual Scientologists belong to or are registered members of a specific "Church."' In both a legal and practical sense then, CSFSO is an entity distinct from the body of adherents who may attend courses or receive auditing there. The defendant has itself indirectly acknowledged this dichotomy in complaining that the negative media reports have repeatedly failed to distinguish the local corporation from the religion itself or its body of believers.

C. OVERVIEW OF LISA MCPHERSONSS "TREATMENT" AT THE FORT HARRISON.

Less than three months after achieving the Scientology status of "Clear," McPherson undressed and walked down the street naked after being involved in a minor accident in which she was not injured. Her actions and mechanical speech, which was littered with Scientology terminology, suggested the existence of unresolved mental and emotional problems despite her eighteen year use of Scientology "technology." Lisa told paramedics that "Nobody knows this" but I'm an "OT" (an operating thetan, a Scientology state beyond that of "Clear"). She indicated she wanted people to think she was crazy because she wanted help. She referred to herself variously as a bad person, having bad thoughts, who had taken "her eyes off the object" and was tired and wanted help. She agreed to go with paramedics to nearby Morton Plant Hospital for evaluation.

Within minutes of her arrival, a group of Church of Scientology Flag Service Organization, Inc. (CSFSO) supervisors and employees arrived at the hospital and attempted to intervene. While at least one handed out anti-psychiatric literature, others insisted on being present with Lisa in the emergency room. With these CSFSO employees and other Scientologists waiting nearby during the evaluation, hospital personnel determined that Lisa did not meet the criteria for involuntary hospitalization and that she did not wish to stay voluntarily at the hospital. After corporate employees assured the hospital staff that they would be responsible for her, Lisa agreed to leave with her "friends from the congregation," and was discharged against medical advice into their care.

After leaving Morton Plant Hospital in the custody of CSFSO employees, Lisa was taken to the Fort Harrison Hotel, a Clearwater facility less than a quarter mile from the hospital which was owned and operated by the defendant. From minutes after her arrival until seventeen days later when her dead body was delivered to a New Port Richey emergency room, no one other than officers or employees of the corporation saw her, touched her or spoke to her. She had no contact with her family, had no access to outsiders, had not been permitted to leave the hotel, and had remained physically and mentally incapable of caring for her own needs.

During that period, more than two dozen corporate employees, from CSFSO's Security division, its Medical Liaison Office, and numerous other corporate offices shared responsibility for her care. Employees were assigned to watch her and made daily reports on her condition to Alain Kartuzinski, who at the time was the Senior Case Supervisor for CSFSO. As the Senior "C/S" he was the highest ranking corporate employee responsible overseeing the quality of spiritual technology or auditing - one of the major functions of the Clearwater corporation. His job included treating so-called "PTS, Type III's."

Lisa's descent from marginal competence to delirium occurred rapidly during the corporation's attempts to diagnose and "treat" her. The State believes that the evidence will show that CSFSO employees attempted to diagnose Lisa's condition without medical help and, without her consent or competent medical authority, force-medicated her with substances to treat her apparent insomnia and delirium, injected her with muscle relaxants to induce sleep and fed her concoctions of herbal remedies mixed with food, vitamins and prescription medication.

Despite the obvious deterioration of Lisa's mental and physical health, she was never taken to or seen by a licensed medical doctor from the time she arrived at the Fort Harrison until her death 17 days later. She lost weight and became weak in the corporation's exclusive care, losing 20-40 pounds. She grew too weak to walk and eventually became so severely dehydrated that she would have been virtually unresponsive for from one to three or more days prior to her death. Her death was a result of her severe dehydration and immobility which led to the development of a pulmonary embolism. Despite clear warning signs of the severity of Lisa's condition, CSFSO employees intentionally bypassed readily available emergency care at nearby Morton Plant Hospital (where doctors had warned CSFSO employees that they would be held responsible for Lisa's welfare) and delayed for hours before driving her to an emergency room in another County.

D. THE FORENSIC EVIDENCE.

Chief Medical Examiner Joan Wood determined based upon the autopsy conducted by Dr. Robert Davis, the laboratory results reflecting vitreous levels, and consultation with outside experts that Lisa McPherson's death occurred as a result of severe dehydration and immobility which resulted in a pulmonary embolism. The five foot eight McPherson, whose weight eighteen days earlier had been estimated at 150 pounds by paramedics and 135 pounds by one of her caretakers, weighed approximately 108 pounds at the time of autopsy. Her sunken eyes and cheeks and her dry skin reflected a gaunt appearance consistent with her severe dehydration. Her mouth, teeth and eyelids were crusted with dried, solid material. She had bruises on her hand and back, as well as the side of her left thigh and also had a series of smaller bruises up and down the lower part of both legs. There were numerous abrasions on her hands wrists and lower arms and on her feet and lower legs, with some of these abrasions having the appearance of insect bites. At the beginning of her stay Lisa had been described as being in good health, with her legs unblemished, having almost perfect "porcelain-like" skin.

The visual evidence of Lisa's dehydration is well established. The caretaker notes and testimony establish a continuing concern with the amount of food and fluid Lisa was taking in. She was estimated to be 150 lbs. by paramedic Bonnie Portolano at the time of the accident and weighed approximately 108 pounds at autopsy. Janis Johnson acknowledged that on the day of her death Lisa looked very thin, as if she had lost weight and appeared to be "majorly" or very dehydrated prior to being taken to the hospital. Johnson described Lisa's skin and sunken eyes as indicating the degree of her dehydration. Dr. Minkoff also indicated she looked "horrific" when she arrived at the Columbia NPR emergency room and appeared to be severely dehydrated. Despite generic language in the autopsy report that Lisa was of "average nutritional status" it is clear from Dr. Davis' testimony that he felt she showed obvious physical symptoms of dehydration. Davis describes a "Hippocratic Facies" as being present. This term, normally used to denote the "face" of death, is used (or misused) by Davis to describe the sunken facial expressions, gaunt look and texture of the skin indicative of significant dehydration. The autopsy photos confirm these observations.

The tests run on the vitreous humor taken from the chambers of the eyes at autopsy provide even more dramatic evidence of dehydration. These samples are drawn from both eyes in a single syringe, then refrigerated until removed for analysis. Forensic research has confirmed that postmortem levels of such substances as urea nitrogen, chloride, creatinine and sodium from the vitreous fluid removed from the eye are accurate reflections of the level of those substances in the blood at the time of death. Lisa's levels were extremely elevated and indicated extreme dehydration:

All of these levels are significantly elevated. Sodium levels in the blood normally range from 136 to 142 with readings over 145 being considered diagnostic of hypernatremia.

The 161 Chloride level is also significantly above the normal range of 95 to 113 for serum chloride. Creatinine is an end product resulting from muscle activity.

Normal levels are between .5 and 1.4. Levels of creatinine are relatively unaffected by diet and it is therefore a useful measure of kidney function. Urea Nitrogen is a substance created as a result of protein metabolism and produced in the presence of specific enzymes in the liver and is particularly stable in vitreous fluid after death. Lisa's urea nitrogen level is extraordinarily high. Urea nitrogen is normally present at a ratio to creatinine of 10 to one; Lisa's urea nitrogen level is almost 100 times her already elevated creatinine level.

Consultation by Dr. Wood with other medical examiners and clinical specialists has confirmed that these test results are consistent with McPherson's condition and Wood's conclusions. At this level of dehydration, Lisa would have been severely and obviously symptomatic for a considerable time and for at least the last 24 hours would have been virtually unresponsive. These experts further believe that the extreme dehydration, which dramatically reduces blood volume and pressure, and the immobility resulting from her condition, would have been the logical cause of the thrombus that led to the embolism.

Dr. David Minkoff, the Scientologist and physician who pronounced Lisa dead, has suggested in his testimony, however, that Lisa may have been "septic" and that a massive infection may have played a part in causing diarrhea and "acute" (i.e. quick onset) dehydration. Minkoff based this speculation on a positive test for bacteria in her blood and his interpretation that the abrasions on her extremities were septic petechiae. The State's experts discount the single blood test (two are normally drawn) as being contaminated by skin bacteria. The autopsy results clearly reflect that the lesions on Lisa's body are in fact abrasions with no underlying hemorrhaging and therefore not petechial hemorrhages caused by a systemic infection. It would be impossible for the urea nitrogen levels reflected in Lisa's lab tests to have occurred in such a brief period. Moreover, although one caretaker suggests Lisa did have some diarrhea the night before her death, there is no evidence or testimony suggestive of the type of massive or continuous diarrhea which would be symptomatic of sepsis or sufficient to cause severe but acute dehydration.

E. THE INVESTIGATION.

Hospital authorities notified police of McPherson's death. An autopsy was ordered and an investigation into the unusual and suspicious circumstances of her death began. The following day police attempted to view the room in which Lisa had been kept, and were shown a room that had been completely cleaned and its furniture changed. In a February, 1996 letter to police, CSFSO corporate counsel and resident agent Robert Johnson claimed that Ms. McPherson's stay at the Fort Harrison Religious Retreat was intended to provide her with "rest and relaxation," indicating further that "She had been involved in an automobile accident and may have suffered some physical trauma and mental anguish. The Church provided her with safe and familiar surroundings." The letter reiterated that the Medical Liaison Office employees were not licensed to perform medical functions and that their function was only to help find a doctor or dentist for a parishioner. Initial interviews continued to portray Lisa as a parishioner voluntarily staying at the Ft. Harrison for "rest and relaxation," who was not under full-time observation but rather received some extra attention when requested. Public statements and press releases by the defendant and Scientology spokespersons confirmed this false view and denied responsibility, even though internal investigations by CSFSO the night of Lisa's death evidenced a completely different picture.

Illustrative of the early statements are the May 29, 1996 and May 30, 1996 taped interviews of Janis Johnson and Alain Kartuzinski by the Clearwater Police Department which were conducted in the presence of CSFSO corporate counsel Robert Johnson. Janis Johnson was a deputy in the Medical Liaison Office who was responsible for handling staff employees in their dealings with health related professionals. She had graduated medical school and been a licensed as a practicing physician before problems caused her practice to close in 1993 and let her license lapse in 1994. She has never been licensed in the State of Florida.

Alain Katcuzinski was the acting Senior Case Supervisor, the top auditor and head technical person within CSFSO's corporate organization. He had in the past been Lisa's personal auditor. After being notified that Lisa had been in an accident and was at the emergency room, he arrived at the emergency room and remained near the entranceway during Nurse Joe Price's attempt to interview Lisa. He drove Lisa to the Fort Harrison and had others assist her in getting a room. Despite his denials of involvement in the taped statement, it was later learned that Kartuzinski briefed many of the caretakers, instructing them that Lisa was a "Type III" and telling them to prevent her from hurting herself or others.

During interviews with police Johnson portrayed Lisa as a parishioner staying at the Hotel for rest and relaxation who was to get extra care from the staff, but not as being a clearly incompetent, severely disturbed woman who was actually unable to speak coherently and oblivious to her own needs. Johnson stated she first met Lisa about five days after the stay began. Johnson had gone to see Lisa with Suzanne Green (Schnurenberg) to make sure everything was okay because Suzanne had some concerns.

Janis repeatedly told detectives that "they" were not attempting to treat her mental or physical problems ("That is not the point of scientology: the Church does not do that.") because she had been "checked" out at Morton Plant and found not to be a danger to herself or others." She stated Lisa had not requested any services and none would have been provided without her consent. She also claimed Lisa was taking an herbal supplement on her own, insisting that the M.L.O. would not make recommendations about over the counter sleep aids.

During the interview Johnson repeatedly misstated or minimized the symptoms and bizarre behavior which we now know that Lisa exhibited. She said Lisa was "just upset" but "she was `with it'"; that Lisa just needed a break to get away from everything; if things weren't going well then (according to what Suzanne allegedly told Johnson) she would probably just sit and think about it and it would be hard for her to get to sleep. She described Lisa as merely being "thin and real wound up" on Johnson's first visit and claims that on a second visit Lisa was better and made a coherent request for powdered vitamins. She implied that it was Lisa who was taking the herbal remedy valerian root. (In fact, Lisa would frequently refuse to swallow these and caretakers would mix them with other substances to induce her to swallow them.) She acknowledged a single episode in which Lisa went into a rage stud had to be given a "big hug" for about ten minutes till she calmed down (she was actually restrained for an hour on one occasion) but stated that was the only problem that they had. On the day of Lisa's death, Johnson indicated she had a coherent conversation with Lisa in which Lisa overcame her own reluctance and agreed to go to the hospital.

Johnson was also evasive and intentionally misleading when detectives repeatedly asked if anyone was assigned to look out for Lisa on a continuing basis, indicating Lisa was merely a "hotel guest"; it was true that they gave Lisa some extra services as people checking up on her but "nothing like that." She claimed she was not sure what Lisa did or where she went during the day. (In fact she never left the room except for venturing a few feet out and being "guided" back in.) Johnson further indicated "The plan was have the people around there in the hotel just give her some extra attention." Asked if anyone checked on her on a routine basis, she responded that Suzanne would pop in to make sure everything was fine.

Janis failed to mention the assignment of other staff members to serve as Lisa's caretakers, failed to mention Lisa being force-medicated or her own involvement in giving Lisa medication and shots, and did not mention her being removed from most of her normal duties and being specifically assigned to Lisa. She did, however, admit that except for Suzanne (who was a friend of Lisa) she knew as much as anyone about Lisa's stay. She admitted that she not only talked to others about Lisa's condition and got reports on her but on average went by about every other day to check on her. She indicated she usually tried to go by around four in the afternoon.

Johnson indicated that she had first noted bruises on Lisa the week of Thanksgiving after Lisa had gone into a rage and was kicking furniture. The Friday after Thanksgiving week (an apparent reference to Friday, December 1) she noticed that Lisa's health was deteriorating; Lisa was noticeably thinner but calmer and had been sleeping better. Johnson allegedly told Laura Arrunada (an M.L.O. employee who had been to medical school in Mexico City but had never been licensed) to take extra time to get fluids and food into Lisa over the weekend. Janis was to be involved in a project over the weekend and knew she would not be able to check on Lisa. When she got back into her normal routine on Monday she went by to see Lisa on that night around eight p.m., and Lisa was already asleep under the covers. Janis backed out of the room and didn't wake her. According to Johnson, Laura indicated she had some difficulty getting food and fluids down Lisa but did not indicate that her condition had worsened. She did not go by the next day until around seven p.m. when she was beeped by Laura. When she got there, Johnson claimed that Lisa looked septic (with what appeared to be petechial hemorrhages) and very, "majorly" dehydrated. She was allegedly talking slowly, but not babbling nor not making sense. Lisa was allegedly happy to see her and though expressing hesitation agreed to go to the hospital for treatment. Johnson stated she called Dr. Minkoff, telling him that Lisa needed to be seen tonight and asking him to give them a room away from the "hoo ha" of the normal emergency room.

Similarly, Alain Kariuzinski's initial statements to police gave no hint of Lisa's severe psychosis, his involvement in setting up "caretakers" to watch her around the clock, or that he had directed that he be updated by written reports on her day to day condition. Kartuzinski indicated he knew Lisa in passing as he did hundreds of other parishioners. He stated he was informed (he believed through a phone call from David Slaughter, Lisa's employer) that Lisa had been in an accident and was at Morton Plant. When he couldn't find another minister to go, he went down to the hospital himself. He was allowed back to the area where Lisa's was being questioned by psychiatric nurse Joe Price.

According to Kartuzinski, Lisa answered Price's questions, indicating she was oriented to time. Lisa wasn't crying but seemed embarrassed. Price asked him to leave the room while he continued to question her; Kartazinski walked to the corridor where DeCuypere and another scientologist were, but remained within earshot. Lisa trade it clear she did not want to stay at the hospital, but wanted to go back to the Ft. Harrison with her friends from the Church. Kartuzinski further stated that Price decided there was no reason to keep Lisa and she was allowed to check out.

Kartuzinski had the idea that she just wanted to go for rest and relaxation and she gave no indication of seeking services. He drove her to the Fort Harrison, dropping her off so she could check into a room. He implied that Lisa checked into the room herself in the ordinary course of events. About ten minutes later, Kartuzinski went to the room and briefly checked on her; she said she was okay. He claimed he did not see her again throughout her stay .

His only follow up was calling the M.L.O. and talking to "whoever answered the phone" and asking them to check on Lisa and see if she needed anything. He was told she wasn't eating or sleeping well the first two or three days but that it was better now.

He stated he was notified in the afternoon or evening the day of her death that there was some sort of medical difficulty. He called for someone to check it out. (He believed Lacy Spencer, his assistant, had brought the problem to his attention.) He said that later that evening Janis came by and said Lisa had some infection and she was worried; she asked to use the phone to call the doctor. She called Minkoff and Alain "guessed" that Minkoff acknowledged that something needed to be done. (Kartuzinski claimed not to have understood a lot of the terminology). When asked what happened to Lisa's personal effects and who cleaned the room, Kartuzinski said he had no knowledge but the hotel did have maids. The detectives sum up saying "So... at Lisa's request she was pretty much you say left alone during this period of time?" Kartuzinski responds "I imagine."

As the police investigation progressed into 1997, actual caretakers were identified and interviewed under oath (after insisting on immunity) and their written records of caring for Lisa were subpoenaed. A different picture emerged.

It became clear that Lisa was delusional and combative throughout her stay, was watched on a 24 hour basis by CSFSO employees because of the severity of her illness, had repeatedly resisted her "caretakers," and was subjected to forced medication and injections. It was learned that written daily records were kept of Lisa's condition, but that crucial records, including all written reports relating her condition on the last two days of her life, had mysteriously and without adequate explanation disappeared. As these facts came to light and the falsity of the initial interviews of CSFSO employees became obvious, additional CSFSO witnesses also refused to testify on Fifth Amendment grounds unless given use immunity.

The inaccuracy of the initial statements, however, would have been known to the defendant at the time they were made. Almost immediately after Lisa's death, the Office of Special Affairs (OSA), which handles legal and public relations problems for the corporation, began an investigation. All personnel who had contact with Lisa were directed immediately to "Flag" and ordered to write down their observations and contact with Lisa. These first hand accounts by the witnesses were then "summarized" in a typewritten memo by OSA employee Marcus Quirino. Corporation Vice President Brian Anderson also wrote a summary of a conversation with David Minkoff. Anderson shared this latter summary with CSFSO attorney Robert Johnson the next day, but stated he did not provide Johnson any of the Quirino memos. Anderson later destroyed all the original notes which had been written for Quirino by the caretakers. At least one of the persons who accompanied Lisa to the hospital (Paul Greenwood) was ordered to write a report to CSFSO security office. Officials also secured Lisa's confidential "PC" folder where the original caretaker's were kept and in which Kartuzinski testified he had made notes during Lisa's stay on his plan for Lisa's treatment.

Despite the corporation's knowledge of the inaccuracy of the statements to police, it continued to affirm the reliability of the information given to officers. In a December 1996 press release castigating the Clearwater Police Department, the "Church," listing CSFSO counsel Robert Johnson and CSFSO Vice President Brian Anderson as contact persons, urged in part:

Eventually, CSFSO supplied approximately thirty pages of notes in response to State subpoenas. The notes were written by eleven separate caretakers covering nineteen shifts on eleven separate days." CSFSO also supplied the internal reports generated by Brian Anderson and Marcus Quirino. The notes detail the severity of Lisa's psychosis and her refusal to eat and drink normally on any regular basis. They also describe instances where Lisa was violent and restrained, where she attempted to leave and rejected attempts to medicate her with prescription medications, herbal remedies, vitamins, over the counter substances and even magnesium injections. The notes stand in stark contrast to the taped statements of Johnson and Kartuzinski and expose their concerted initial attempt to mislead the police at the beginning of the investigation.

One of the notes is entitled M.L.O. Report, is in Johnson's handwriting and is signed by her as "Janis Johnson, M.O." It is a directive dated the Friday before Lisa's death and indicates:

This note corresponds with caretaker notes by Boykin indicating Johnson was present and gave Lisa Magnesium shots; it is also consistent with other testimony about Sylvia DeLaVega suffering a "burn out" after caring for Lisa. This note signed by Johnson as M.O. ( a apparent reference to "Medical Office" or "Medical Officer") reflects her diagnosis that McPherson was suffering from dehydration and her prescription of treatment by trained personnel.

Concerted but unsuccessful efforts were trade to locate the missing records, particularly those relating to the last two days before Lisa's death. The chain of custody on the existing records is hopelessly confused and is complicated by the fact that the records were in "PC" folders which may not be reviewed by Scientologists of a lesser level than Lisa. It appears that all the records were in Kartuzinski's office before Lisa's death. After Lisa's death they were gathered up from Kartuzinski's office by Annie Mora and sent to California. The files were searched for relevant documents by Lynn Farney who apparently then sent documents to the attorneys for the Church in Clearwater. Despite extensive and time consuming efforts many records remain missing with no explanation. The report written by Paul Greenwood, all caretaker notes by Heather Petzold, all caretaker notes for the final two days of Lisa's life and all contemporaneous notes of the incident by Kartuzinski have been removed from Lisa's "PC" folder and lost or destroyed.

The details from these remaining records and the sworn statements of CSFSO employees indicate that from the outset of her stay and continuously until the evening of her death, Lisa was viewed by her caretakers as deeply psychotic and unable to care for herself, talk coherently or make logical decisions. She was watched initially by Emma Schamerhorn, an elderly lady working in the Medical Liaison Office (M.L.O.). Because of Emma's age and the importance of having continuity in Lisa's care, Alain Kartuzinksi approached Andrea Sprecher and got permission to have Janis Johnson of the M.L.O. assigned full-time to the task. Under Kartuzinski's direction, other employees organized a schedule where caretakers were assigned to watch Lisa for her twenty-four hours a day. Only one of the caretakers knew Lisa to any extent. They were asked to make written reports to Kartuzinksi. Lisa's behavior as described in these notes indicated she was hyperactive, delusional and hallucinating. She tried to harm herself and others early in the stay, struck caretakers, engaged in repeated self-destructive behavior and had to be forcibly restrained on several occasions to prevent injury to herself or her caretakers.

After the first week, Lisa routinely urinated and defecated on herself and rarely slept. She had conversations with people who were not there, claimed to be people she was not, sang and danced around the room as if giving a performance, crawled around on the floor, stood in the toilet, got in the shower fully clothed, tried to walk out of the room in a state of undress, "humped" the floor as if having sex with an imaginary person, drank her own urine and on at least one occasion placed her head in the toilet.

It is impossible to reconstruct the actual amounts of fluid and food ingested because the caretaker notes are erratic and imprecise in their notations and they were written by untrained CSFSO employees rather than health care professionals. We also do not have notes or accurate testimony for every shift. It is clear, however, that after the first several days Lisa never completed a normal meal and her only real sustenance was an occasional protein shake and mixtures of fruit and protein powder. She sometimes would ingest an entire shake and on other occasions would spit out everything that she was fed. Her fluid intake was also limited, although again no precise amounts can be reconstructed from the available documents and caretaker testimony.

The combativeness that exemplified the early portion of her stay seemed to subside and guards were no longer posted at the doors for the last four or five days of her life. At one point Sylvia DeLaVega could no longer handle her caretaker responsibilities and they were undertaken by more emotionally stable staff members. By Saturday, December 2nd, both Heather Petzold (in her oral testimony) and Rita Boykin (in written notes to Kartuzinski) indicated that Lisa had grown so weak she could no longer stand or walk. They have since said, however, that Lisa made a "partial" recovery gaining back strength before her sudden demise on Tuesday December 5. The State's testimony will indicate that Lisa's dehydration was so severe that she would have been extremely and obviously symptomatic for at least a day and probably several days before her death. These symptoms would not only include mental confusion, but during the last few days lethargy increasing to almost complete unresponsiveness.

When Lisa was allowed to leave Morton Plant on Saturday November 18, 1995, CSFSO employee Judy Goldsberry-Weber, a subordinate of Johnson's in the Medical Liaison Office, had promised Dr. Lovett (whom she knew from prior dealings) that Lisa would receive necessary care. Weber later learned that Johnson was involved in Lisa's care and asked Johnson how Lisa was doing. Johnson gruffly told Weber to not to talk to anyone about it that she (Johnson) had been placed in charge and Weber was no longer involved. Some days later, Weber was asked to pick up a prescription for Lisa from a Largo pharmacy (she believes it was valium, but detectives have been unable to locate this prescription). She again asked Janis how Lisa was doing in case she ran into Dr. Lovett and he asked. According to Weber, they wound up getting in a screaming match after Janis said "You don't have to worry about him, I'm in charge. Butt out."

David Houghton testified that he overheard Janis talking on the phone about getting Lisa to take medication. Houghton, a dentist who was preparing to seek licensure in Florida, indicated he believed he could get Lisa to swallow. Later, probably on the 21st, he and Janis had a conversation with Dr. Minkoff about prescribing medication to help Lisa sleep. Houghton testified that there was an initial discussion of liquid chloral hydrate but they were unable to find that at any pharmacy. Dr. Minkoff then prescribed injectable valium under Houghton's name for Lisa after a second phone conversation involving Minkoff, Houghton and Johnson. Houghton picked up the valium from the pharmacy and returned it to Johnson the next day. During these conversations with Minkoff, Houghton and Janis described Lisa as a Type III (a psychotic person) who was having difficulty sleeping. Hougton did not believe that Lisa was ever given the valium, because in a follow up conversation with Alain Kartuzinski he overruled using this drug on the premise that it may be too strong and affect later attempts at auditing.

Houghton then, on three occasions with Kartuzinski's approval, medicated Lisa with a mixture of Benadryl (an over the counter antihistamine generically known as diphenhydramine which is used in non-prescription sleep aids) and aspirin. The aspirin was suggested by Kartuzinski after looking up Hubbard writings that suggested that aspirin may serve to block some of Lisa's visual delusions. Houghton did this by filling an irrigating syringe with a crushed aspirin and Benadryl (a syrup) mixture then injecting it down the back of Lisa's throat. while she was held onto by others. He never discussed with Lisa what he was giving her or why, as she was not capable in his estimation of coherent conversation or consent. Houghton was relatively sure he told Janis about this after the first incident and before the next two.

Weber recalled overhearing Houghton and Laura discussing the procedure and became very upset; Weber has a nursing background and knew patients could only be force medicated with physician authorization. According to Weber, Houghton and Laura closed the door so that Weber could no longer hear what they were talking about. Weber then confronted Janis about this, asking what doctor had approved such a procedure. Janis said to "butt out." When Weber indicated she thought something was wrong, Johnson said that it was not Weber's concern. Weber indicated to Johnson that she had never known Lisa to be violent and Janis responded "Well, you know psychotic breaks." Weber was so upset about this unauthorized use of forced medication that she called the CSFSO legal office and asked Judy Fontana to "check it out." Fontana's status in the corporation is indicated by her elevation to an officer of the corporation in early 1996. Her husband Humberto Fontana was in the Office of Special Affairs and had been present at Morton Plant when Lisa was released.

It appears from caretaker notes, witness interviews and Johnson's taped admissions that prior to December 5th, Johnson was at Lisa's room on at least six dates - on November 23rd, November 24th, November 29th, November 30th, December 1st, and December 4th - and that she talked with the caretakers or others about Lisa on November 26th, 27th and December 3rd, 1995. Documents and testimony concerning these dates provide relevant detail concerning Lisa's treatment and Johnson's involvement:

Kartuzinski declined to provide sworn testimony to the State Attorney's Office without immunity. In October of 1998 he was subpoenaed in for a State Attorney investigation, receiving statutory use immunity as a result of the subpoena. Kartuzinski acknowledged being at the emergency room and driving Lisa back to the Ft. Harrison. He acknowledged lying to the police in his earlier taped statements out of concern for himself and "possibly" concern for the Church but denies coordinating those falsehoods with other witnesses. He admitted that he did a report of his interview with the police for the Office of Special Affairs after it occurred. He testified contrary to his earlier taped statements to police that he had a brief conversation with Lisa when she first arrived at the hotel in which he suggested it may be necessary to do some auditing and that it would be nice if she would sleep, take vitamins and eat well in preparation for this. According to Kartuzinski Lisa said okay. Kartuzinski did not discuss any specifics with her because he had not yet determined what auditing would be necessary. Within a short period of time, Lisa's condition deteriorated markedly and she was incoherent and no longer competent to make decisions or handle everyday affairs. He had no explanation for not calling Lisa's family to inform them of her condition.

Kartuzinski acknowledged getting oral reports from Janis Johnson and written reports from the caretakers. He states that the latter were put into Lisa's PC folder by him. He also wrote notes about this in about ten separate pages in the PC folder and made about 20 pages of notes concerning scriptures and Lisa's condition. Kartuzinski also read a report from auditor Ruthie Humphery. Humphrey had attempted to audit Lisa during the middle part of her stay after she had enough sleep. Lisa began licking the e-meter; the auditing did not continue and was never attempted again during Lisa's stay. These notes are also not in the PC folder.

He recalls reading the notes from Petzold or Boykin indicating that Lisa was too weak to walk or stand and being concerned about her condition. He states that he also read the subsequent reports up to her death (these along with all of Kartuzinski's notes are missing from the file) and recalls them being about the same - that her condition had not improved which was "not very able to walk, still not eating enough, still not sleeping" or drinking enough."

Kartuzinksi further claimed that Lisa was PTS Type III. He defined PTS as a potential trouble source, meaning that Lisa would be viewed as someone who represented a threat to herself and to the "Church."

Kartuzinski claimed he was notified between 5-6 p.m. that Laura was trying to get in touch with Janis about Lisa and that subsequently Janis came over to his office after seeing Lisa. She was out of breath (as if she had hurried to his office) and concerned that Lisa was septic - meaning she had a "big" infection. They called Minkoff together and Minkoff would not prescribed antibiotics without seeing the patient. Kartuzinski specifically contradicts Minkoff's assertion that he suggested that they take her to Morton Plant if Lisa was really ill, even though others in the NPR emergency room recall overhearing this part of the conversation.

Finally, Kartuzinski acknowledges that Lisa's treatment was not in accord with the tenets of Scientology. Hubbard "scriptures" indicate that Type Ill's can only be handled by Scientology organizations with hospital facilities (neither Flag nor any other Scientology facility meets this criteria) and a specific directive prevents the treatment of "psychotics" at Flag. The Scriptures require a full medical examination of a person in such a distraught condition. Kartuzinski admitted that at the time of the examination at Morton Plant and his initial contact with her at the Fort Harrison she was not displaying the severe mental symptoms that later developed. Finally, Kartuzinksi acknowledged that Lisa did not consent to the injections and medications he had given to her and she was not capable of doing so.

Kartuzinski attested that at the time of Lisa's death he was the Senior Case Supervisor for CSFSO and as such was the highest person in the organization with control over the handling of Lisa's situation. He informed Debbie Cook, the Captain of Flag, of the incident and she would have been aware of the nature of Lisa's condition from his conversations with her. No one at the time was higher in the organization to notify than Cook. Cook acknowledged in her own testimony being informed of Lisa's stay and getting periodic updates on her condition. Paul Kellerhaus (Senior in the Hubbard Communications Office), and Arthur Baxter (Head of Security) were heavily involved in the watch process. In addition Brian Anderson, vice president of the corporation, has acknowledged being informed of the situation and getting briefed by Paul Kellerhaus every several days about Lisa's condition. In addition to these individuals and the caretakers, the security guards posted at Lisa's door, and the supervisors who briefed them and organized a schedule, a significant number of other people in the hierarchy were aware of Lisa's situation and received updated information from briefings or conversations with other employees: Marcus Quirino (Chief Deputy Officer and Chief Officer's Organizing Officer), Annie Mora (Office of Special Affairs), Janet Herring (Organizing Officer for Chief Officer of Flag and former Director of the Corporation).

F. THE ISSUE OF CONSENT.

Informed consent means a voluntary decision after sufficient explanation and disclosure that the person has at least a general understanding of the medically acceptable alternatives to make a knowing health care decision without coercion or undue influence. In this case it should be viewed in the context of Lisa's 18-year sojourn with Scientology procedures which over the course of the year proceeding her death had failed her.

Despite expending large sums of money, she had mental and emotional difficulties throughout the year of her death resulting in a mild "psychotic episode" in the summer of 1995. This was followed by a declaration that she had finally reached her goal of Clear, and therefore by Scientology definition should have had no more "engrams" that could be "restimulated" to cause the "psychotic break" that she subsequently experienced. She had spent over twenty thousand dollars on courses and auditing over that summer alone, and despite financial difficulties and diminishing productivity at her job, had committed herself to another $10,000 to reach even higher levels. After August of 1995, however, she did not pursue these courses or pay the additional monies to which she had obligated herself and in fact did not use up the auditing services that she had already prepaid for. She contacted her mother (who was not a scientologist) that fall and told a lifelong, non-scientologist friend that she was coming home to Texas for Christmas and staying for good.

Her conduct at the time of the accident (at least prior to the arrival of her fellow Scientologists) at best suggested ambivalence. She indicated she wanted people to think she was crazy because she wanted help. She referred to herself variously as a bad person, having bad thoughts, who had taken "her eyes off the object" and was tired and wanted help. She agreed to go with paramedics to Morton Plant Hospital for evaluation.

The defendant suggests that McPherson wanted, requested and consented to the treatment (and presumably the abuse and neglect which have been alleged). The sole apparent basis for these assertions, other than Lisa's history as a Scicntologist, is the note in hospital records by attending physician Flynn Lovett that Lisa did not want to stay at the hospital and that the Scientologists had agreed to take care of Lisa and give her the kind of care "she wanted." The defense then suggests, without supporting detail, that Lisa made a specific and affirmative request for "spiritual treatment" by Scientolgists and then attempts to equate this presumed "request" as justification for the forced use of medication, injections, herbal remedies and prescription medicines on an incompetent and resisting patient. This "consenting" patient had been housed by them in a room without access to family or the outside world for seventeen days when she died as a result of her, immobility and dehydration.

Consent is largely irrelevant to both charged crimes. No one can by consent grant permission to another to engage in the practice of medicine as that authority can only be conferred by licensing authorities. Similarly, a disabled adult cannot, by "consenting" to or acquiescing in abuse or culpably negligent conduct that causes death or great bodily harm, eliminate the criminal consequences for the abuser. See, e.g.. In Sientarecki v. State, 724 So.2d 626 (Fla. 4" DCA 1998), review granted by Sieniarecki v. State, 729 So.2d 394 (Fla. 1999). More importantly however, the credible testimony does not support the suggestion of consent. The actual statement of Lisa to hospital officials was simply that she did not want to stay and wanted to leave with her friends from the congregation. According to Judy Goldsberry-Weber she indicated only that she found the noise and confusion and the doctors "poking" her bothersome and wanted to go someplace quiet.

Initial oral and taped statements to police by Janis Johnson and Alain Kartuzinski (the two corporate employees most involved in Lisa's care) indicated that Lisa had not consented to or requested any procedures or medication, and that since it would violate Scientology principles to provide such treatment without informed consent, none were planned. Indeed as late as February 1997 this continued to be the official position of the CSFSO. A February 22, 1997 letter from attorney Sandy Weinberg,who represents the CSFSO in both the civil and criminal proceedings, responded to police inquiries by stating:

In October of 1998, nearly three years after his initial statements to the police and only after being granted immunity, Alain Kartuzinksi has now changed his testimony. He admits that he did not discuss with Lisa the possibility of Lisa going back to her own residence but simply asked her if he could drive her to the Fort Harrison. After Lisa was taken directly to a room in the Cabana area, Kartttzinski had a brief visit with her at the room at which time the following conversation allegedly occurred:

At the time of this alleged conversation Kartuzinski had not yet decided what type or how much auditing needed to be done and had no specific discussions with her about specific procedures, medication, the circumstances or length of her stay at the Fort Harrison or the potential cost she would be facing. Moreover, by Kartuzinski's own admission, Lisa's condition at the time of this conversation was markedly different from her delirious and psychotic state a few days later. Therefore, the possible treatments and alternatives that Lisa faced once she became delusional and dangerous to herself and others were not the same as she had faced at Morton Plant or the first day of her stay when Kartuzinski alleges he spoke with her. The informed decision she would have faced would have been markedly different as she continued to deteriorate in the defendant's exclusive care. After seventeen days of nightmarish failure of the CSFSO's diagnostic and treatment decisions, in which she had lost 20-40 pounds, become severely dehydrated, and developed abrasions and bruises over much of her body, it is unlikely that a rational person would have decided to continue this course. Since no licensed medical doctor ever saw Lisa, and she was not medically evaluated once she became extremely symptomatic, none of her caretakers would have been in a position to explain the alternatives to her. Of course, no one attempted to do so, nor was any informed consent to any of these procedures ever acquired.

The overwhehning evidence, however, indicates that within 48 hours of her arrival at the Fort Harrison and throughout her stay in the hands of the defendant corporation she so markedly deteriorated that she was incapable of coherently discussing her own needs or of caring for herself or of giving consent to any treatment procedure. The persons who gave injections to Lisa, forced medication down her throat with an irrigation syringe, and mixed herbal remedies and other medications in milkshakes did not inform Lisa of the nature and purpose of the substances she was ingesting or attempt to get her consent at least in part because they felt she was incapable of coherent communication.

Over the course of the seventeen days of her stay at the Fort Harrison, Lisa's conduct was anything but cooperative as she descended quickly (if the caretakers are to be believed) into disorientation and auditory and visual hallucinations, repeatedly tried to walk out of the room, fought - sometimes violently - with her caretakers requiring security guards to be posted at her door, rarely slept, refused to eat or drink on any consistent basis, would not voluntarily take medications given her, was held down while unauthorized injections were administered, held down on three occasions while a concoction of prescription drugs and aspirin were injected down her throat by an unlicensed dentist, frequently cursed her caretakers, and also accused them of trying to kill her. Lamps, mirrors and phones were removed from her room.

The condition of her body was a poignant testament to the difficulty of her final days: she had bruises, inflicted by her own conduct or the restraint imposed by her "caretakers" (sometimes accomplished barehanded other times done with a towel to get a better grip), over her extremities and trunk and abrasions, some resembling insect bites, over her hands wrists ankles and feet. Her eyes were sunken as a result of dehydration, her body thinned by weight and water loss. Dried material was caked on her teeth. Even her fellow Scientologists have referred to the visual condition of her body as "shocking and unbelievable" and "horrific."

During Lisa's stay she slept sufficiently to perform auditing on only one occasion and when it was attempted Lisa responded by licking the e-meter then throwing it. No other auditing "treatment" or use of Scientology "technology" was attempted throughout her stay. The defendant was equally unsuccessful in its attempts to gain Lisa's cooperation in taking medications, vitamins, herbal remedies and other drugs, and in eating, drinking and sleeping.

For instance, Teresa Cezare, an Argentinean national who was an employee of the defendant, watched after Lisa on the 24th and 28th of November. Teresa testified that on both occasions Lisa refused to eat or drink and was spitting out food and fluids. She deteriorated from the first visit to the second and had developed more bruises ("violet") on her body.

Cezare indicates she had been told by security guards that Lisa likes to try to leave the room and to not let her do so. On two to three occasions when she was there, Lisa tried to leave and indicated that she wanted to go (she was not fully clothed), but did not indicate that she wanted to go "home." Lisa resisted Cezare's efforts to return her to the room and Cezare had to hold Lisa by the shoulders and guide her back in and sit her in a chair. Similarly, Lisa tried to walk out twice on Security Guard Sam Ghiora when he was posted to the front door of the room. On the first occasion, as she started to walk out the door Chiora pointed to direct her back inside; she initially said that he wasn't CMO (a corporate/church office) and could not tell her what to do and then, referring to him by name said she didn't understand what was happening and for him to please help her. In a second incident, Lisa walked to the door where Ghiora was stationed and attempted first to knee him in the groin and then poke him in the eye. Ghiora states she was not coherent at the time. Other caretakers also report attempts by Lisa to walk out the door or break the window in the room.

Clearly Lisa was also not cooperative in taking medicine or in eating or drinking the food and fluids she was offered by her caretakers. After the first few days, Houghton's involvement was precipitated by the fact that he knew how to make uncooperative subjects swallow medication by using a syringe to put the substance far enough down the throat that swallowing became reflexive. Initial medications were sought in liquid or intramuscular form so they would be able administer them effectively. The caretaker notes and testimonies are replete with indications that Lisa spit out vitamins, medicine, food and fluids. Although her behavior was erratic, it is clear that after the first few days she never had a complete meal and was not eating and drinking enough to sustain life.

For instance, Emma Schamerhorn, who personally cared for Lisa early in her stay before being replaced by Janis Johnson, testified that the most fluid she took in while she was with her was a few swallows of protein shake and couple of swallows of water. She did not think Lisa had more than 2-4 ounces of fluids during the periods that she was on watch; the most Emma ever saw her eat at one time was a banana. Emma agreed that Lisa was not eating and drinking enough to keep her alive in the long run. Similarly, Heather Petzold, who cared for Lisa the second half of her stay, was beginning to get frantic about the situation in early December and noticed Lisa's rapid physical decline over the last several days of her life. Although she didn't believe Lisa needed to go to the hospital, Petzold nonetheless wrote reports around the first or second of December that "she (Lisa) was continuing to scream, you know just things over and over. She's defecating on the bed. She's - she doesn't walk around as much - she is sleeping less. She - we tried to give her protein drinks, we tried to give her like eggs, whatever we could give her, and I haven't been able to succeed. We need to change something." Petzold's reports have been lost or destroyed by the corporation, as have all caretaker notes for the last two days of Lisa's life. Petzold testified that she didn't believe there was any day where Lisa was fed and ate sufficiently.

Lisa's continued resistance was also manifested by the number of times she was restrained and attacked or tried to harm her caretakers. Testimony suggested that Lisa was violent for periods of up to two hours at a time, and had to be held down for periods of thirty minutes, forty five minutes and up to an hour. She attempted to slap, gouge, kick and strike her caretakers, struck one on the arm, gave another a black eye and accused others of wanting to kill her. She was held down while trying to keep her quiet, while trying to take her temperature, while trying to medicate her orally, and while giving her injections.

Janis Johnson has suggested in her taped statement to police in May of 1996, in the presence of corporation counsel Bob Johnson, that it was Lisa who wanted to go to New Port Richey for medical help instead of Morton Plant. Ms. Johnson admitted that it was apparent to her from Lisa's skin and sunken eyes that she was "majorly" dehydrated. In addition, she apparently believed Lisa to be suffering from such a massive systemic infection that her capillaries had burst causing petechial hemorrhages on her arms and legs. Nonetheless, she claimed that Lisa was conscious and coherent and wished to be taken to New Port Richey to Minkoff - to someone who would treat her with respect. Moreover, Johnson suggested that Lisa had not been mentally ill during her stay, but just a little stressed out. She described Lisa as "with it" and just there for "rest and relaxation."

These characterizations were patently false; the severity of Lisa's medical condition as demonstrated by the forensic evidence indicate she was incapable of coherent conversation and essentially unconscious at the time she allegedly had this conversation. Paul Greenfield, who assisted in carrying Lisa to the van and transporting her to the hospital, testified that although her eyes were open she was motionless and uncommunicative for the entire period he saw her. She never spoke to him, acknowledged his presence, or made any voluntary movement of any kind. Her breathing was labored even before the trip began.

Based upon Lisa's bizarre and delusional behavior, every caretaker with the exception of Johnson has described Lisa as incoherent and incapable of making decisions about her welfare. For instance, Leslie Woodcraft testified that Lisa seemed incapable of making decisions, and David Houghton indicated that Lisa was not competent to make decisions on medication or to make even the most basic decisions of whether to see a doctor. Rita Boykin indicated that Lisa only spoke incoherently and that she did not attempt to communicate with her because she did not believe her to be capable of giving a coherent response. Heather Petzold testified that she never had a coherent "comet cycle" with Lisa except for a single occasion on a single day when Lisa asked her name.

Finally, after being granted immunity, Kartuzinski testified under oath that Lisa never asked for any of the medications or other remedies used on her. He acknowledged that it was clear after the first day that Lisa was unable to function by herself, had serious mental problems, and was incapacitated as far as handling day to day living, including being unable to make decisions about her own welfare. Additionally, Kartuzinski testified that he and Janis called Minkoff together before deciding to take her to the hospital in New Port Richey. He is unaware of any discussion with Lisa about where to take her and does not believe she was competent to discuss this. Janis never related that she had such a conversation with Lisa. He states that he made the decision for her to go to the Pasco hospital.

G. SCIENTOLOGY PRINCIPLES.

The Court is not bound to accept self-serving statements of the defendant as to either what its practices are or which of its practices are "religious" in nature. A defendant cannot immunize itself from criminal responsibility by merely attaching the word "religion" to its activities, nor, by blending references to religion into its activities, can it change essentially commercial or secular undertakings into religious ones or expand the rights of religious protection to such non-religious matters. Tony & Susan Alamo Foundation v. Sec. of Labor, 471 U.S. 290, 105 S.Ct. 1953, 85 L.Ed.2d 278 (1985) (Religious foundation which engages in commercial enterprises which include service stations, retail businesses, hog farms, construction companies, a motel, and a candy manufacturer is subject to the provisions of the Fair Labor Standards Act, even where foundation claims all of its activities are a part of its religious mission and foundation's employees claim not to want the protections of the Act).

In United States v. Bauer, 84 F. 3d 1549 (9th Cir.1996), defendants, Rastafarians, were convicted of conspiracy to manufacture and distribute marijuana, distribution of marijuana, possession of marijuana, and various related charges. The defendants appealed. The Court of Appeals held, inter alia, that the federal Religious Freedom Restoration Act was no defense to conspiracy and money laundering charges. The Court observed:

The principle has also been uniformly applied in situations not involving drug laws. In People v. Hodges, 10 Ca1.AppAth Supp. 20, 13 Ca1.Rptr.2d 412 (Ca1.App. 1992), a pastor and assistant pastor, who were also president and principal of church school, were convicted of violating a statute requiring child care custodians to report known or suspected instances of child abuse to the state's child protective agency: The pastors wanted to "handle the matter within the church" in derogation of the law and asserted their First Amendment rights. The Superior Court upheld the conviction, and stated:

Thus, this Court has jurisdiction to determine for itself for purposes of RFRA and other defenses raised by CSFSO what the relevant tenets of Scientology are.

Scientology has its origin in the publication of the book Dianetics in 1951 by L. Ron Hubbard. Hubbard claimed that he had discovered the hidden source of all psychosomatic ills and human aberrations and that Dianetics skills had been developed for their invariable cure. Dianetics repeatedly stressed that its underlying theory and its techniques were "scientific." He claimed Dianetics was an exact science, confirmed by clinical research. He compared Dianetics with other sciences and made repeated claims of the scientific nature of his research and discoveries.

In Hubbard's terminology the "analytical mind" is the concious mind, which operates flawlessly like a computer. However, it may direct the body in an "aberrated" manner if fed false data by the unconscious or reactive mind. Hubbard claimed that the source of these human aberrations were "engrams," an irrational association made by the "reactive" (unconscious) mind with an unpleasant event that becomes "keyed in" and then "restimulated" when similar events occur in the future. The reactive mind is a moron and is capable only of recording events literally when the analytical mind is rendered unconcious by sleep, injury, drugs, or illness. The engram becomes keyed in by a similar event in the future and then later becomes "restimulated" causing psychosomatic illness or aberrant behavior.

Hubbard posited that most such engrams occurred prenatally when a fetus, embryo or zygote was rendered "unconscious" by a blow to the mother's abdomen (by the husband, examining doctor or during sexual activity) and through some unexplained phenomenon the individual cells perceived and recorded the overheard statements as engrams. Hubbard explained that the ability of the cells to record events begins with and even before conception. (Dianetics at page 187.) These engrams could be discovered and removed from the memory of the reactive mind by the process of auditing. Auditing entails the patient being asked a series of specified questions while holding the grips of an e-meter, a device which measures changes in skin conductivity. When all engrams in the reactive mind were eliminated the person became "Clear," an almost superhuman state in which the Clear was as superior to a normal man as a normal man was to an insane person:

Subsequent to Dianetics, Hubbard went on to found the religion of Scientology of which Dianetics and auditing remained a core part. Building on Dianetics, Hubbard claimed to have discovered "what it was that the mind was coating" - the thetan. With Scientology, Hubbard developed additional auditing procedures and levels of advancement beyond "Clear" - beginning at OT-1 (OT standing for operating thetan) and higher. The material contained in these higher levels has not been fully disclosed to the public.

Hubbard also developed a philosophy to explain case failures. Hubbard indicated that all persons associated with a suppressive person (a person who is against Scientology or against "anyone helping anyone else") would "roller coaster" instead of making consistent progress. Such people were classified by Hubbard as "PTS," which stands for Potential Trouble Source, indicating the person means potential trouble for himself and for Scientology. Hubbard classified potential trouble sources into three categories with the third and most disturbed type being extremely pscyhotic. Hubbard indicated that such persons, Type Ill's, were in need of medical evaluation as they may be suffering from a physical illness with a known medical cause. Second, he indicated that they could only be handled in organizations that were equipped with hospitals since intravenous feeding and other medical treatment of a non- brutal nature might be necessary. The Fort Harrison was not so equipped and specific Hubbard directives precluded the treatment of psychotics at the Fort Harrison.

For instance, Hubbard Communications Office Bulletin 24.11.65 (Reissued in November of 1987) titled "Search and Discovery" declares that "The Type III PTS is mostly in institutions or would be .... All institutional cases are PTSes. The whole of insanity is wrapped up on this one fact." "Type III [PTS] is beyond the facilities of orgs not equipped with hospitals as these are entirely psychotic." Hubbard indicates "medical care of a very unbrutal nature is necessary, as intravenous feeding and soporifics (sleeping and quieting drugs) may be necessary. Such persons are sometimes also physically ill from an illness with a known medical cure." Apparently recognizing that this treatment will not be universally effective, this Hubbard directive goes on to note "But there will always be failures as the insane sometimes withdraw into rigid unawareness as a final defense, sometimes can't be kept alive and sometimes are too hectic and distraught to ever become quiet. "(emphasis supplied) The ultimate goal in "handling" potential trouble sources was to either change the perspective of the suppressive person who was affecting him or to completely dissociate from that person and end the relationship.

In 1973 Hubbard introduced the "introspective rundown" an auditing procedure for "psychotic breaks" which he referred to as a "technical breakthough which possibly ranks with the major discoveries of the twentieth century." The bulletin claimed that in 1970 "the actual cause of psychosis was isolated... In the ensuing years this has been proven beyond doubt to be totally correct." The rundown makes no mention of potential trouble sources or suppressive persons but indicates that psychotic breaks are caused by introversion: "The essence of the introspective rundown is looking for and correcting all those things which caused the person to look inward worriedly and wrestle with the mystery of some incorrectly designated error. The result is continual inward looking or self- auditing without relief or end." As can be seen by the attachments to the Reiss affidavit, subjects are audited with an e-meter by being asked a series of unusual questions and gauging their responses on the meter.

As an auditing procedure, however, the introspection rundown requires, under Scientology beliefs, that the subject have adequate nutrition and sleep before it can be used. Thus, Kartuzinski now blames a lack of sleep or nutrition for the failure of auditing to assist Lisa during her stay. It was briefly attempted on one occasion and never tried again.

Alain Kartuzinski provided three Hubbard scriptures during his sworn testimony which he and other CSFSO officials had knowingly violated and which he testified were applicable to Lisa McPherson's situation. These directives prohibit the handling of psychotics at the Flag Service Organization. Hubbard's language makes clear that acceptance of psychotics or people with psychotic breaks is prohibited in part because the inability to cure them may leave the organization open "to failures." [See attachment 13.)

II. THE DEFENDANT'S CRIMINAL CONDUCT WAS NOT CONSISTENT WITH NOR JUSTIFIED BY SCIENTOLOGY RELIGIOUS BELIEFS.

The defendant suggests that their employees' actions do not constitute a crime because they were following Scientology beliefs, yet at the same time suggests corporate liability is inappropriate because the same actions were not necessitated by and were in fact inconsistent with the tenets contained in Scientology scripture. Since neither the local corporation nor its employees may create or alter the religious doctrines of Scientology, the corporation's admissions demonstrate that the defense has not and cannot establish that the actions upon which the prosecution is based, were justified by the religious beliefs and practices of Scientology.

There is no constitutional or statutory right to practice unlicensed medicine or abuse disabled adults simply because this criminal conduct may be alleged to be a religious practice. Therefore, the consistency of the corporation's actions with the religious tenets of Scientology is a potential affirmative defense only as allowed by statutes prohibiting the unlicensed practice of medicine. It must be emphasized, however, that no Scientology religious tenet precludes medical treatment, evaluation or supervision of persons that are physically or mentally ill; indeed Hubbard's writings suggest underlying medical conditions can be the cause of apparent mental illness and that hospital facilities, medical treatment and intravenous feeding are a necessary part of treating someone who is "psychotic." No religious tenet authorizes forced medication or injections or any other procedures to which the "parishioner" has not validly consented. Nor does any Scientology tenet authorize unlicensed personnel to determine through diagnosis that physical or medical causes are not responsible for "psychotic behavior.".

Similarly, the statements of those persons involved in the incident do not support the defendant's assertions. Janis Johnson, for instance, the unlicensed former doctor assigned to oversee Lisa's care, has denied that any of the above practices would be justified by Scientology principles: