VS. CASE N0. 00-002750-CI-20

DELL LIEBREICH, individually and as Personal Representative of the Estate of Lisa McPherson, ROBERT MINTON and THE LISA MCPHERSON TRUST,


BEFORE: The Honorable W. Douglas Baird
Circuit Judge
PLACE: 315 Court Street
Clearwater, Florida
DATE: August 29 - August 30, 2002

REPORTED BY: Susan M. Valsecchi, RPR

Registered Professional Court Reporter
Sixth Judicial Circuit



Pages 1 - 192 (Excluding Index.)

(727) 443-0992


Post Office Box 1368
Clearwater, Florida 33757
(727) 461-1818

Attorney for Plaintiff

600 Peachtree STreet, NE, Suite 2400
Atlanta, Georgia 30308-2222

Attorney for Witness Samual Rosen

P.O. Box 24597
Tampa, Florida 33623

Attorney for Dell Leibreich

442 W. Kennedy Boulevard, Suite 280
Tampa, Florida 33606

Attorney for. Witness Michael Garko









P R 0 C E E D I N G S

THE COURT: All right. We're here to continue the evidentiary hearing on the motion to disqualify Defense Counsel.
MR. ROSEN: Thank you, Your Honor. Good morning. If I might raise one or two preliminary matters to which we have submitted some papers to the Court.
The first one is -- was a short motion that we submitted a couple of days ago entitled Plaintiff's Motion for Relief From Kennan Dandar's and Tom Dandar's Contumacious Conduct.
I don't know -- has Your Honor had a chance to read that?
MR. ROSEN: Okay. I would -- as Your Honor knows, one of the remedies we're seeking is a time limit to Mr. Dandar's defense, apart from any other remedies that Your Honor may impose, for the activity which occurred before Judge Barton respecting the conflict, so I would suspect that that's probably a good starting point for today, that motion, if I may ask Your Honor ahead of time -- I'm not going


to argue it. Everything we have to say we've put in our papers.
THE COURT: Well, I'm going to consider the circumstances regarding the conflict and the matters that were contained in the motion and the transcripts of the hearings before Judge Barton.
I don't have any particular desire at this point to do anything about it. I'm going to -- you know, we're going to see this hearing through and receive all of the relevant testimony that needs to be received on the part of either party, and then it will be resolved along with everything else.
So I'm not going to lay down any markers at the beginning of this process regarding how it's to be effected.
MR. ROSEN: I take it from your comment that the markers refers to time limits.
MR. ROSEN: Okay. If I could then move on to the next two, which are related.
We filed bench memorandums. One is concerning exclusion of testimony respecting alleged conversations with Robert Minton, and


the second is a memorandum to exclude Mr. Dandar's defense as irrelevant. They are related matters.
I don't know if Your Honor has had a chance to review those.
THE COURT: Just briefly. I just got them a couple days ago.
MR. ROSEN: Okay. Well, they're kind of short, but let me walk you through what the problem is.
On the assumption that what was going to happen before this Court has some similarity to what happened during 35 days before Judge Schaeffer, Mr. Dandar's case in defense, as we understand it, is to call witnesses, including Mr. Prince, himself, to testify to conversations they had with Mr. Minton.
The, quote, defense that Mr. Dandar is presenting or at least we expect that he will, because it's what he presented to Judge Schaeffer, is that in these conversations which occurred after the settlement meetings in March and April, Mr. Minton allegedly made comments and admissions -- I shouldn't say admissions -- comments -- to Mr. Dandar and to


Mr. Prince which they interpret as he threatened them, as we threatened them and Mr. Minton in the settlement meetings, both church representatives and attorneys threatened Mr. Minton.

And I assume Mr. Dandar is offering that to demonstrate collaterally something respecting Mr. Minton's testimony.

We have three points to make on that, and I think this is going to cover all of the evidence that Mr. Dandar has to present, except for perhaps himself.

His entire case, as we understand it, is this, based on the witnesses he identified, including me:

Here's the history of this, and here's why we think this evidence is excluded.

First of all, it's not relevant to any issue in this case. What we're trying, as Your Honor knows, are discrete and-very specific acts of misconduct by Mr. Dandar.

What Mr. Minton allegedly said to Mr. Dandar and Mr. Prince, which they interpreted as being some sort of a threat, is not relevant to these issues.

Secondly, as we set forth in the first of these briefs -- the bench memorandum, rather --­the one that is entitled Plaintiff's Testimony -- excuse me -- Plaintiff's Bench Memorandum to Exclude Dandar's defense, that's where we argue the relevance in the second one. We argue as follows:

Mr. Minton was on the witness stand before Your Honor. He is no longer here. And not surprisingly, Florida is not to his liking.

To the extent he was asked when he was before you on the witness stand of any conversations he had along these lines, supposedly this defense, he denied them.

More importantly, to the extent he was asked, this is a collateral matter. And I think the law is that you cannot impeach a witness on a collateral matter by offering extraneous evidence, i.e., other witnesses.

THE COURT: Since when is Mr. Minton's credibility a collateral matter?

MR. ROSEN: No. The credibility is not the collateral matter. Mr. Minton's credibility is certainly an important matter, not anything but collateral, but the collateral

issue is whether or not Mr. Minton says something to Mr. Dandar or Mr. Prince, you know, which they interpret as meaning the Church of Scientology threatened me. That's not -­that is collateral. That doesn't go to Mr. Minton's credibility.

The second aspect is as follows: I think the law since Queen's Bench that if you want to impeach a witness, you must confront them, give them an opportunity and say in effect, "Didn't you tell me X?"

Okay? To the extent that they did ask him about it, that's a collateral impeachment. To the extent that they offer evidence of any conversations with Mr. Minton that they did not ask him about when they were on the stand -- when he was on the stand -- that violates the fundamental rule that you cannot impeach a witness without first confronting him with the statements.

So we have it in two different compartments, depending on whether the information to be elicited is something that was addressed in Mr. Dandar's cross-examination of Mr. Minton before you or not.

I don't know what the testimony is, so I can only tee up the categories, if you will. It's going to be one of those two.
If it's the first one, we think it's collateral. If it's the second one, clearly it cannot be offered.
Now, let me get to the bottom of this. And as we understand it from the proceedings before Judge Schaeffer, Mr. Dandar's defense is as follows:
In meetings, settlement meetings held between the Church and its Counsel and Mr. Minton and Ms. Brooks and Mr. Minton's counsel starting in my office on the 28th of March and continuing into the month of April, Mr. Dandar's allegations before Judge Schaeffer was that we threatened Mr. Minton, we somehow pressured him to provide -- to bear false witness against Mr. Dandar.
That may be relevant, as Your Honor indicated, to the extent it goes to the credibility of Mr. Minton, but I remind Your Honor that most of the evidence in this case has nothing to do with credibility.
It's documents that existed long before,
whether it be Mr. Minton's checks, whether it be Mr. Dandar's letters, notes, et cetera, his briefs, his statements to the courts.

But I want to go beyond that for a moment. There were six people at the meeting in my office, a representative of the church and two attorneys, myself and Ms. Yingling.

Across the other side of the table were Mr. Minton, Ms. Brooks and Mr. Minton's attorney, Mr. Jonas, from the firm of Hale and Dorr in Boston. Six people at this meeting.

Mr. Dandar has alleged before Judge Schaeffer that at this meeting Mr. Minton was threatened.

Let me tell you what's happened so far because I'm going to ask you to have Mr. Dandar, if you're going to allow him to pursue this defense, to make a proffer.

Number one, Judge Schaeffer asked if the attorneys would be willing to-waive their work product privilege with respect to the notes at that meeting. All three attorneys waived.

Myself, Ms. Yingling and Mr. Minton's attorney waived our work product privilege and produced the notes. There's nothing in there
about threats.
Mr. Dandar persisted, "I know they threatened him. That's my claim. I don't have any evidence. I wasn't at the meeting."
The next thing that happens is three of the six people at the meeting have testified. Mr. Minton testified both before you and before Judge Schaeffer emphatically denying that there were no threats, no promises, no coercion, nothing addressed to him.
Ms. Brooks, who did not testify before you but did testify before Judge Schaeffer, said the same thing, "I was at those meetings, no threats, nothing."
Ms. Yingling, an attorney for the church testified before Judge Schaeffer, "I was there. There were never any threats."
Now, does that mean that he cannot call the other people who were at the meeting, including me? Because Your Honor knows he said last time I'm his first witness. Not necessarily.
But it would strike me that in this context, if Mr. Dandar wants to allege -- continue to allege -- without any

evidence, no good-faith belief, as far as I'm concerned, that anything was said, either by my client or by the attorneys, myself included, at this meeting, which was in any way inappropriate by way of a threat or coercion, I would ask you to ask Mr. Dandar to make a good-faith proffer.
And that not only applies to my testimony -- and I'm perfectly willing to testify. As Your Honor knows, one of my partners, Mr. Hill, is here to represent me in case I have to testify.
But Mr. Dandar is apparently going to call a series of witnesses, and I would ask that Your Honor ask him to make a good-faith proffer.
If Mr. Dandar is going to stand here and tell you, "I have a good-faith belief," I will use myself as an example, "that if Mr. Rosen takes the witness stand, he's-going to admit that he threatened Mr. Minton," that's fine.
Let him make the good-faith proffer, and Your Honor can deal with whether or not that is good faith after the testimony is in.

But so far, what has happened is just this

endless thing of Mr. Dandar making accusations of what happened in these meetings that neither he was in nor any of his witnesses were in, and he just makes acquisitions of misconduct against attorneys.
He's made acquisitions against Mr. Pope. Mr. Pope was not even there, and he complained that Mr. Pope threatened Mr. Minton.
And I think there comes a point in time -- I'm not asking you necessarily to cut him off, because I understand that given the seriousness and the nature, perhaps, as Your Honor said a moment ago, 'you should hear all of the relevant evidence, but I think it is appropriate, as Mr. Dandar is going to call a parade of these so-called defense witnesses all addressing one issue, supposed threats to Mr. Minton, that he make a proffer of what he intends to offer, and Your Honor can then determine whether it's relevant, whether it is hearsay, as we've argued.
You know, a statement by Mr. Prince on the stand as to what Mr. Minton told him is hearsay, pure and simple.

And I think it would benefit the process,
then, if Your Honor is going to consider any of this, that we start with each witness, including myself, with Mr. Dandar making a proffer. I thank Your, Honor.

MR. DANDAR: Judge, I would like to not follow his suggestion. I would like the Court to permit me to call Dr. Garko, my former trial jury consultant in the wrongful death case, who is sitting here with his attorney, paying his attorney to sit here. He's a witness.

Dr. Garko was not a party to the New York meetings. Dr. Garko was a party to conversations with Mr. Minton after the meetings commenced here in Clearwater.

I also ask you to make a note and have Mr. Rosen produce anywhere in any record of Judge Schaeffer's where I accused Mr. Pope of extorting Mr. Minton.

Mr. Pope states he was not at any of the meetings, and that's where we left it. We didn't go accuse him of something. He said he wasn't at the meetings. We took him at his word.

I would like to start with Dr. Garko so he can get on and get off the stand. He is from

Northeast Tampa, and I hate to have him sit here while we argue this while his attorney is present.

THE COURT: I can't recall. Did you confront Mr. Minton with these alleged statements that he made to Mr. Garko at the time that he was on the stand testifying?

Mr. DANDAR: No, at that time we did not know that Mr. Minton had secretly met with Dr. Garko. Dr. Garko also secretly met with Sandy Weinberg, Counsel for Flag, the day before he testified for the church.

THE COURT: The reason I'm asking is because it wouldn't be impeachment.

Mr. DANDAR: Well, it's impeachment on this subject, his meeting with Mr. Minton which
Occurred after Mr. Minton came into the contempt hearing on April 9th.

His meeting resulted in conversations concerning Mr. Minton soliciting from Dr. Garko an agreement to testify that this so-called secret meeting took place in my office to add on David Miscavige, and Dr. Garko testified -

THE COURT: Why isn't this all hearsay?

Mr. DANDAR: It's not hearsay because,

number one, Mr. Minton is a party in this case, and it's a statement against interest. It's an admission against interest.

When he files an affidavit in your court this secret meeting and there’s a witness - - he says that Dr. Garko was there -
Dr. Garko is going to testify under oath it didn't happen, it never happened, and that's impeachment of, number one, of a party and, number two, of their only -- their prize witness. Their whole foundation of their motion rests on Mr. Minton.

THE COURT: I wouldn't say their whole foundation rests on Mr. Minton.

Mr. DANDAR: Okay.

THE COURT: Mr. Rosen?

MR. ROSEN: Yes, Your Honor. The history is as follows:

At the time of the hearing when the hearings commenced before you and in April at the resumption of the contempt hearing, Dr. Garko was trial consultant engaged by Mr. Dandar.

When those hearings resumed and we started formally the disqualification hearing on the

19th of April, Dr. Garko was sitting here at counsel table with Mr. Dandar.

They cross-examined -- Mr. Lirot cross-examined Mr. Minton on the witness stand on the 19th before you. Mr. Minton testified to that meeting.

You will remember the meeting. He flew down here, was picked up, he came to Mr. Dandar's office, they talked about the strategy of amending to add Mr. Miscavige, went down the elevator, Mr. Dandar then went to Mr. Minton and Ms. Brooks, and Mr. Dandar allegedly said this meeting never happened, et cetera. He sat here.

Any conversation he had that Dr. Garko could offer that he had with Mr. Minton, they could have asked Mr. Minton about when he was here and they didn't.

You asked a question of Mr. Dandar, let me answer it.

I don't pretend to have memorized the entire transcript of the proceedings before you, but to my knowledge, there was never any question asked about any conversation with Mr. Garko, at all.

THE COURT: We've established that it's not impeachment, but that it's not - that it’s not admissable hearsay because it's it's an admission against - or it’s an admission by a party, which is Mr. Minton.

MR. ROSEN: Yes and we anticipated that. If Your Honor could turn to our bench memorandum concerning Exclusion of Testimony Respecting Alleged Conversations with Robert Minton, you will see that we start out asserting that this is hearsay, and we anticipate in this - on page 3 we say the evidence is hearsay.

THE COURT: It's obviously hearsay.

MR. ROSEN: Yeah. And we anticipate this, as we go further on into the brief, we say, okay, on Pages 4 and 5, the only possible hearsay exceptions that Mr. Dandar could argue are either admission, party, which pertains to a party, or declaration against interest, which pertains to a non-party.

As Your Honor knows, admissions and declarations against interests have one thing in common. They have to consist of a statement


which would -- a person would not make because it would subject them to some sort of liability, civil liability, criminal liability.
THE COURT: This isn't a declaration against interest.

MR. ROSEN: Say again.
THE COURT: This is not -- these alleged statements would not be declarations against interests.

MR. ROSEN: That's correct.
THE COURT: And I don't think they suggested that they were. They suggested that these were admissions by parties. Why don't you address that.
MR. ROSEN: Okay. And my response to that is they are not admissions because they don't admit anything. Mr. Minton is saying this is what I did and this is what happened at the meeting with Mr. Dandar.
If it is offered as an admission through Dr. Garko of a conversation that occurred and they didn't ask him about it, we're back to the Queen's Bench Rule. You should have confronted him with it when he was on the witness stand.
But let me give you, perhaps, a more
important proposition. Mr. Minton, while he is a, quote, party in the breach case before you in the sense that we have amended to add him as a defendant, he is not a, quote, party to this proceeding.

This is a proceeding to disqualify Mr. Dandar as counsel for Ms. Liebreich.

And I would suggest, Your Honor, consistent with your own ruling on April 9th, that Mr. Dandar was not a party to the contempt proceeding against Mr. Minton.

If you remember, when Thomas Dandar tried to cross-examine him on the 9th, Your Honor said, "You're not a party this is a contempt proceeding. It's between the Plaintiff and Mr. Minton," and of course the Court.

That's the same situation here. This is a proceeding to disqualify Mr. Dandar.

Mr. Minton, while he is a party in the underlying case, is not a party to this proceeding.

So even if you looked at it in the broadest light as an admission, even though they never confronted him with it, it can't come in as an admission of a party because he's


not a party here.
And that's why we treated it in our brief in the alternative. If he's not a party here, then the only exception is a declaration against interest.
And as Your Honor knows, a declaration against interest requires that the witness say something which would be against his own interest, which would, for example, subject him to civil or criminal liability.
There is nothing to that effect that's, in fact, one of the reasons Your Honor to have Mr. Dandar make the proffer, because what you're going to hear is not anything about Mr. Minton making a statement of declaration against interests that, "God, I committed fraud," or I did this or I did that.
THE COURT: I don't want to hear anymore about declarations against interests. I've
already told you that that's not the exception here, so we don't need to argue that.
MR. ROSEN: Well, if what he's asserting is admission, for the reasons I stated, including that admissions only apply to parties and Mr. Minton is not a party to these


proceedings for disqualification of Mr. Dandar.
THE COURT: All right. I'm going to go ahead and allow the testimony. It appears to me that under 9802, it would be an admission, and it's the party's own statement. So do you want to call the witness?
Mr. DANDAR: Yes, thank you. We call Dr. Michael Garko.
MR. ROSEN: Your Honor, while Mr. Garko is coming forward, there's one other thing I forgot. We had indicated we were going to rest, we don't have anymore witnesses. However, we do have some additional exhibits to offer.
What we've done, Your Honor, is we have two volumes for you. Volume I are just another copy of all of the exhibits that have already been received.
Volume II -- and we've given these to Mr. Dandar -- are exhibits that we're offering. Some of them were identified earlier, but I forgot to move them in, and some of them came up afterwards in the Judge Schaeffer hearing.
I'm offering these exhibits as part of our case, and we rest. And if Mr. Dandar wants to

take a few minutes to read them during a break, that's fine. But Volume I is what's already been received and Volume II is what we're offering.
THE COURT: Well, you don't have to worry about offering them out of order, but I do think that Mr. Dandar ought to have an opportunity to take a look at them before the Court receives

THE COURT: I've already got the stuff you -- there were two volumes basically.
MR. ROSEN: Yeah, they include ones that I forgot to move into evidence, so the ones -- this Volume I is the ones that are already in --
THE COURT: All right.
MR. ROSEN: -- as we reviewed the transcript. And these are the ones that we will offer. Mr. Dandar can review them.
MR. DANDAR: We would object to any new evidence since they already rested, and we would also object to, after they rested, moving exhibits into evidence.

THE COURT: I've already told them I'm


going to allow them to open up their case and put this in if it's relevant and otherwise admissible, so let's proceed with the witness.

MR. SCRIVENER: Good morning, Judge. I'm Lance Scrivener, Counsel for Mr. Garko.

MICHAEL GARKO, called as a witness, having been duly sworn, testified as follows:



Q. Good morning. Please state your full name.

A. Michael Garko.

Q. And what is your occupation?

A. I'm a trial and jury consultant and a professor.

Q. And professor on what subject?

A. Communication.

Q. What is the extent of your education?

A. I have a bachelor's degree in communication, mass communication, with an emphasis in public relations. I have a bachelor's degree in humanities. I have a master's degree in communication and I have a Ph.D. in communication theory and research.

Q. When did you start -- when did I retain you as my jury trial consultant?

A. My recollection is somewhere at the end of '98, beginning of 1999.


Q. In what case was that?

A. This case. I beg your pardon. The wrongful death case, Lisa McPherson case.
Q. And from that moment on, you continued and practiced as my jury trial consultant, not only in the Lisa McPherson wrongful death case, but other cases, correct?

A. That's correct.

Q. And did there come a point in time when you ceased being my jury trial consultant on that wrongful death case of Lisa McPherson or any other case?

A. Yes.

Q. And when did that occur?

A. You're asking me when did I perceive -­

Q. When did you. give me notice that you resigned?

A. I sent you a letter not long ago telling you that I formally resigned from the Lisa McPherson wrongful death case.

Q. That was after you testified before Judge Schaeffer?

A. That's correct.

Q. Okay. Now, during the course of the litigation in the wrongful death case, you came to know Robert Minton, correct?

A. I did.

Q. And during the course of the litigation of the

wrongful death case, would you ever contact Robert Minton without my permission?

A. I don't have any recollection of ever calling him. With respect to your permission, I did that as a matter of protocol for myself. I didn't think I needed your permission either to call or not to call.
I just did that because I wanted to focus on the matters of the case. I didn't want to interact with him or, in fact, the client.

Q. Who was in control of the wrongful death case from the moment you started until today?

MR. ROSEN: Objection, no foundation, calls for a conclusion.

Q. Based on your observations and experience in working with me -- well, let's back up. How often would you work with me on the wrongful death case?

A. Well, over the three-year period, in those three years I worked with you almost every day.

Q. And would you attend all of the depositions?

A. I think I attended the lion's share of the depositions in that case, as well as hearings.

Q. Would you attend the hearings?

A. Yes.

Q. And would you from time to time -- would you and I


go over to the Lisa McPherson Trust office and stop in and say hello?

A. Yes, we did.

Q. Okay. And did you meet Dell Liebreich, the personal representative of the estate?

A. I did meet her.

Q. Okay. Based upon your experience in working with me in the wrongful death case of Lisa McPherson, who was in control of the case?

MR. ROSEN: Same objection.

THE COURT: Overruled.

THE WITNESS: The client.


Q. And who is the client?

A. Ms. Liebreich.

Q. Okay. Did Robert Minton, as far as you know, exercise any control over the wrongful death case?

MR. ROSEN: Objection.

THE COURT: Overruled.

THE WITNESS: Not to my knowledge. I guess I'm -- what do you mean by control? If you could tell me what you mean by the control issue, I think I understand what you mean, but...


Q. Okay. Control meaning directing me to do things in the case.

MR. ROSEN: Objection. That's irrelevant. That's not the issue.
MR. DANDAR: Well, I'm at a disadvantage on what the issues are, Judge, because the Motion to Disqualify hand-delivered to my brother on April 8th during Robert Minton's deposition did not specify any grounds for disqualification.
And as we had a hearing on the 19th and the 30th of April before you, things just kind of blossomed. And when we went to Judge Schaeffer, they even grew even more.
Now, they did file a Statement of Issues, I think, maybe two or three days ago, but you haven't ruled on that so I don't know what the issues are quite frankly, so...
THE COURT: Well, the issue is whether you should be disqualified. You certainly can't be
disqualified for representing your client, okay, so I think you know what the issues are.
The issues are did you suborn perjury, did you file false affidavits, did you violate the canons of ethics. Those are the issues.

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