Motion to disqualify the Riverside DA's entire office
21 Mar 2001
hkhenson@pacbell.net

There are a few minor glitches in this, the Great Mambo Chicken is about events only 30 years ago instead of 40, but man, is this an incredible job of coming up to speed on the issues in a scientology case. I think this motion is going to be considered an instant classic. (OCR errors are my fault.)

I haven't a clue as to how Judge Albert J. Wojcik will deal with a motion like this after many years of mostly going along with the DA. I suppose he could recuse himself, ghod knows anyone in Hemet could.

Keith Henson

LAW OFFICE OF CRIPPS AND HARR
JAMES O, CRlPPS State Bar No 31518
JAMES J, HARR State Bar No 9503
133 N Buena Vista, Suite I
Hemet, CA 92543
(909) 925-5024

Attorney for Keith Henson

RIVERSIDE SUPERIOR COURT

IN AND FOR THE COUNTY OF RIVERSIDE PEOPLE OF THE STATE OF CALIFORNIA ) Case No HEM014371

NOTICE OF MOTION AND MOTION TO
DISQUALIFY OFFICE OF THE
RIVERSIDE COUNTY DISTRICT
ATTORNEY ON THE BASIS THAT A
CONFLICT OF INTEREST EXISTS THAT
WOULD RENDER IT UNLIKELY THAT
THE DEFENDANT WOULD RECEIVE A
FAIR TRIAL. POINTS AND
AUTHORITIES, AFFIDAVITS IN
SUPPORT

Notice is hereby given that Keith Henson defendant in the above-entitled action and hereinafter “Defendant” by and through his attorney will on April 9 2001 at 9:30 am, in Department H-2 of the Riverside County Consolidated Courts Hemet Branch located at 880 N. State Street in Hemet California move the Court to disqualify the Office of the Riverside County District Attorney, entirely, from prosecuting the Defendant’s case herein.

The Defendant asserts that this motion is necessary because a conflict of interest exist that would render it unlikely that the defendant would receive a fair trial as set forth in Penal Code section 1424 and the cases that have applied this statute.

This motion is based on this notice of motion, the affidavits attached to the motion, the court herein and such matters as may be presented at the hearing on this motion. Since this motion must be supported by affidavits the Defendant has provided one or more affidavits all of which are to be used for the sole purpose of supporting this motion and are intended for no other use whatsoever.

BACKGROUND OVERVIEW

Scientology has long tried to silence and ruin the Defendant because of his persistent, conspicuous and unequivocal criticism of what he sincerely believes to be Scientology’s unlawful and inappropriate activities. This current misdemeanor case which is based solely on the information provided by career Scientologists and their agents that they are in fear due to Defendant’s actions, continues this Scientology tradition of attacking detractors and is commonly known as the fair game doctrine. It appears to Defendant that the Riverside County District Attorney has given and continues to give preferential treatment to the powerful Scientology machine and its agents thereby resulting in a conflict of interest which makes it likely that the Defendant cannot receive a fair trial.

FACTUAL, BASIS FOR DISQUALIFYING THE ENTIRE PROSECUTORIAL
STAFF OF THE RIVERSIDE COUNTY District ATTORNEY

Defendant cites the following facts in support of his motion to disqualify the entire prosecutorial staff of the Riverside County District Attorney’s Office.

1. The District Attorney has filed a motion in limine with the court in this case to prevent the defendant from introducing evidence of the Fair Game Doctrine because the practice, to the extent it ever existed, was terminated in 1972 or 1974; the practice is an internal matter, that such evidence is not relevant, and, that such evidence is precluded by Evidence Code Section 350.

This doctrine authorizes Scientologists to destroy a detractor with the blessing of the church. Defendant's opposition to this case, as well as the affidavits filed concurrently herewith clearly show that none or the DA's assertions about the fair game doctrine can be taken seriously and that the Office of the District Attorney is, in essence, an agent of Scientology’s attack on the Defendant. We ask the court to take judicial notice of the five California cases cited in Defendant's opposition to the People's Motion in Limine on the issue of Fair Game to show that the courts have clearly taken evidence on this doctrine and found this practice to he alive and well after its alleged demise in 1972 or 1974; namely, Hart v. Cult Awareness Network, 13 Cal.App 4th 777, 16 Cal.Rptr 705 (1993) Allard v. Church of Scientology, 58 Cal.App 3d 439, 129 Cal Rptr. 797(1976). Scientology v. Armstrong, 232 Cal.App.3d 1000, 283 Cal Rptr. 917 (1991). Scientology v. Wollersheim, 42 Cal App 4th 628 49 Cal Rptr.2nd 620(1996), Wollersherm v. Church of Scientology, 212 Cal App 3d 872, 260 Cal Rptr 331 (1989).

One can only take from the People's motion that the District Attorney did not research the issue and/or Scientology wrote the brief for the District Attorney. This issue of fair game goes to the heart of the Defendant's case in showing the motive of prosecution witnesses to lie and fabricate evidence. The District Attorney agues that this issue of whether all of the “victims" who are believed to be high-ranking, career Scientologists, have a motive to lie under the Fair Game Doctrine, is not relevant pursuant to Evidence Code 350. This is preposterous, and shows that the District Attorney is blind to a quest for truth in this case and is instead looking merely for a victory for Scientology.

Although this motion is not signed by Grover Trask, it in "submitted" to the court by him. Finally, Scientology has chased the Defendant through 7 or 8 other lawsuits of various kinds in an attempt, in the Defendant's mind, to destroy his good name and cause him financial ruin. These are completely consistent with the classic elements of the on going fair game doctrine.

2. People who seem to know Grover Trask on a first-name basis have apparently written at least two letters to Grover Trask when the prosecution of the Defendant did not appear to be proceeding as desired by Scientology. The Defendant and his attorney have seen these letters but have not been allowed to get copies of these letters.

3. On August 3, 2000 Deputy Greer was assigned to interview the Defendant. Defendant said to Deputy Greer: "For historical kind of problems, do you want to tape it" The "it" referred to was the interview. Deputy Greer then stated, "I don’t see any need to. Unless you feel more comfortable if I taped it”, Defendant then said, "I got a tape recorder. If you want to I can tape it and leave you with the tape." Deputy Greer responded, "No that's fine. That's fine I'll just take some notes and you know because there is an investigation I just need to let you know that you are not under arrest.

This is a total volunteer interview." Defendant then stated "Sure." At this point, Deputy Greer then proceeded with the interview of Defendant, and the interview of Defendant, and the interview was recorded by some person or entity other than the Defendant. I can't imagine that Deputy Greer didn't know this interview was being taped when he expressly said all he would do is take notes. A copy of this transcript is in the possession of the DA and the attorney for Defendant and can be produced if the court so requests.

4. A critical issue in this case is the People's attempt to authenticate certain alleged Internet postings by the Defendant. When the prosecutor assigned to the case found out that the Defendant would not stipulate to authentication, as is his right under the United States Constitution and the California Constitution, a Scientology attorney, within days, tried to get the Defendant to authenticate these very postings in a Scientology deposition of the Defendant in the Defendant's pending chapter 13 bankruptcy.

A transcript of Defendant's testimony was then given to the prosecuting attorney and presented to the Defendant's attorney as proof of authentication. This is clear evidence of the power of the Scientology machine and the dubious way in which the district attorney was willing to gain an advantage regarding the authentication of certain documents by such tactics A copy of the relevant pages of this transcript is the possession of the district attorney and the attorney for the Defendant and can be produced if requested by the court

5. At the last hearing in Judge Walker's court Judge Walker informed the parties that he knew one of the People's witnesses in this case and, that despite this fact, he believed he could continue in this case. The Defendant had no objection to Judge Walker remaining on the case. After the prosecuting attorney assigned to this case checked with someone higher up in the district attorney's office, the district attorney required Judge Walker to recuse himself. The district attorney will require the Judge to recuse himself when he and the Defendant see no problem. However, the same district attorney claims that motive to lie is not relevant on the issue of the Fair Game Doctrine.

6. Defendant and others have tried to get the district attorney to investigate Scientology involvement regarding the deaths of Ashlee Shaner and Stacy Meyer. Apparently when Scientologists or their influential agents contact Grover Trask, Scientology is able to get results in prosecuting the Defendant, even when law enforcement initially sees no evidence of a crime. Defendant is now being prosecuted on 40-year-old hearsay in a book, the Defendant's patent for a 747 to deliver a nuclear payload on Golden Era, and the glaring fact that all victims are high ranking, career Scientologists who are in "fear", even though other Scientologists are following the Defendant and trying to keep him from seeing his friends. When the Defendant and others try to have Scientology investigated for two deaths that have occurred in the in this area, apparently the district attorney won't follow the recommendations of the highway patrol or assist Deputy Greer to conduct a further investigation.

7. Defendant mentioned to the prosecutor and/or law enforcement that two of the alleged witnesses for the People, both of whom are Sdentology investigator, are believed to have tried to run over him in a parking lot. The Defendant was told that nothing could be done about it.

8. The court case print herein has an entry for 9/01/00 as follows "Release with a letter to from DA to Appear." Defendant never received any notice from the DA to appear nor has he been able to get a copy of any such letter. If it exists, he didn't get. By pure luck he found out about his arraignment. Defendant believes that he was not notified of his arraignment through normal channels so that a failure to appear would issue. To the extent that this entry might indicate that the Defendant was released that day, it would be inaccurate.

POINTS AND AUTHORITIES

Penal Code section I 424(a)(1) provides in part that the notice of motion to disqualify the district attorney shall contain a statement of the facts setting forth the grounds for the claimed disqualification, the legal authorities relied upon by the moving party, and be supported by affidavits of witnesses who are competent to testify to the facts set forth in the affidavits

The standard for granting the motion is stated in Penal Code section 1424(a)( 1) as follows: "The motion may not be granted unless the evidence shows that a conflict of interest exists that would render it unlikely that the defendant would receive a fair trial"

In People v. Merrit, 19 Cal.App 4th 1573, 24 Cal Rptr 2d 177(1993), the court confirmed that the term "conflict" within the meaning of Penal Code section 1424 as "evidence of a reasonable possibility the district attorney's office may not be able to exercise its discretionary function in an evenhanded manner." The Merritt court, citing People v. Hamilton (1989)48 Ca.3d 1142 1156 259 CalRptr, 701 as does the Defendant, that to recuse an entire prosecutorial office is a serious step and there must be a showing that such a step is necessary to assure a fair trial. The Merritt case also citing People v. Hernandez, stated that disqualification of an entire staff is disfavored absent substantial reason related to the administration of justice

Finally, the Merritt case states that when it appears that misconduct has been committed by the district attorney, then the burden shifts to the district attorney to show that sanctions are not warranted because the defendant has not been prejudiced by the misconduct.

People v Neely, 70 Cal App.4th 767 775, 82 Cal Rptr 2d 886 (1999), show that a district attorney can stay on the case when professionalism and due regard for the appearance of propriety might dictate otherwise. The Neely court seems to indicate that in order for an entire district attorney office to be disqualified, conduct which is unseemly or which reduces the public's confidence in the impartiality and integrity' of the criminal justice system is not enough. The standard is "likelihood of unfairness."

Defendant believes that there is ample evidence in this case for the court to recuse the entire prosecutorial staff in light of the standards set forth above, and he believes that it is unlikely that he can receive a fair trial

ARGUMENT

The facts set forth above demonstrate that the district attorney has been influenced by Scientology to prosecute the Defendant and to take whatever means necessary to ensure that the Defendant cannot introduce evidence of how he has been, and is being, victimized by Scientology's fair game doctrine and practices. The district attorney starts by categorically stating that the doctrine does not exist. This flies in the face of the attached affidavits and the 5 California cases cited. We have not bothered to cite cases from such states as Florida. The District Attorney goes so far as to say it is not relevant whether the People's witnesses are lying or have a motive to lie because they are Scientologists.

This is a deliberate attempt to convict the Defendant without a fair trial and shows the length that the DA will go to in order to "win." Defendant can't get law enforcement or the DA to take his repeated allegations of criminal wrongdoing by Scientology and its agents seriously, but the DA jumps into action when Scientology writes the DA personally on the evidence provided solely by Scientologists who claim to be in fear of him. Scientology is the same organization that hires people to follow the Defendant, picket his home and work, and chase him from court to court in an attempt to squash his voice. There is no explanation for this DA behavior and can only be characterized as burying one’s head in the sand for the benefit of Scientology

Getting the DA to do its work is classic execution of the fair game doctrine. Even so, the district attorney tries to tell the court to protect Scientologists from answering anything about these critical issues. Law enforcement is allowed to mislead the Defendant about the taping of his interview, in the hope of catching Defendant off guard. A Scientology attorney uses a bankruptcy deposition of Defendant to try to coerce the Defendant into authenticating documents that the DA is unable to do without such dubious help. Even though it appears to some that there is culpability for Scientology in certain deaths, the DA apparently will not cooperate with law enforcement personnel to get to the bottom of the matter, yet, it takes Scientology's word hook, line and sinker when it comes to the Defendant.

CONCLUSION

If the Riverside County District Attorney's Office is allowed to remain on this case it is likely that the Defendant will not get a fair trial. The court should conduct a hearing to take evidence on the issue of disqualification.

Respectfully submitted this 12th day of March 2001 in Hemet, California

JAMES J. HARR, Attorney for Defendant