criminal accusations and response to defence attempt to dismiss

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

STATE OF FLORIDA Case No.CRC98-20377CFANO-S

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

' Auditing is a Scientology procedure that is discussed at page 40 herein.

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:

"highly desirable state for the individual, achieved through auditing, which was never attainable belotFe Dianetics. A Clear is a person who no longer has his own reactive mind and therefore suffers none of the ill effects that the reactive mind can cause. The Clear has no engrams which, when restimulated, throw out the correctness of his computations by entering hidden and false data."Z

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.

Z See, What is Scientology (attached as exhibit A to defendant's Affidavit by Richard Reiss) at page 1019.

' See, First Independent Missionary Baptist Church of Chosen v. McMillan, 153 So.2d 337 (Fla. 2d DCA 1963).

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

See, page 413 of "what is Scientology" attached to defendant's pleadings which indicate that membership in Scientology is governed by membership in the International Association of Scientologists rather than affiliation with an individual Church or Mission.

This assertion, contained in the affidavit of Michael Rinder, is urged by the defendant as a "substantial burden" imposed upon it.

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 ill's. "6

Lisa's desqent 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

PTS stands for "potential trouble source" and is a Scientology term for person exhibiting psychotic behavior. See pages 39-42.

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.'

An embolism is the blockage of an artery or vein by a plug or clot (in this case the latter) that has migrated from another part of the body. In this case the embolus (clot) is believed to have originated in a thrombus in the left poplitial vein, located on the back of the leg behind the knee. A thrombus is a blood clot inside a blood vessel, as opposed to a clot outside the vessel in surrounding tissue. Because the embolism emanated from a vein, it would travel toward the lungs (for the blood to be oxygenated) after passing through the right side of the heart. As the pulmonary artery branched and became smaller, the embolism partially blocked the left pulmonary artery. The right pulmonary artery was unobstructed, and the blood flow to that lung was unblocked. There are a number of risk factors that will predispose persons to a thrombus. Injury or surgery which causes the immobilization of a limb or patient can be an important factor. Dehydration is another common factor.

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 ' The autopsy report is attached as exhibit 5. ' Statement of Leslie Woodcraft at page 31. Statement of Alice VanGrondelle, April 1998, at page 19. 6

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: Vitreous Urea Nitrogen 300 mg/dl Vitreous Creatinine 2.6 mb/dl Vitreous Chloride 161 mmol/1 Vitreous Sodium 180 mmol/1

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. to 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.

1° Hyponatremia is a condition of excessive sodium levels in the blood which can be fatal.

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 ;t 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

Attomey Johnson was allowed to make his own tape of the stater, Kartuzinslti's taped statements to police are to be found as attachments 2 and S

practice 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. 12

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

'Z Transcript at 18.

13 Transcript at 17, 57, 58.

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'"'5; 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. '6 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

" Transcript at 14.

'° Transcript at 17.

'b Transcript at 15.

" Transcript at 28.

" Transcript at 31, 32.

19 Transcript at 63.

checking up on her but "nothing like that."2° 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. "t` 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 toted 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

m Transcript at 26. 21 Transcript at 23. u Transcript at 63. b Transcript at 25, 30, 31. u Transcript at 31, 32. 25 Transcript at 34.

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 .26 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.n 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 hint 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.

26 Transcript at 36, 37.

z' Transcript at 38. Laura allegedly said she had been having diarrhea for 24 hours. She did not say this in her statement to the SAO. 29 Transcript at 39, 40. r' Id.

30 Transcript at page 47. Minkoff does not confirm this, but indicates he insisted on Lisa being seen before being given a prescription for antibiotics.

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 .'t

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

31 Kartuzinksi has under immunity acknowledged the falsity of this statement. He did briefly visit Lisa's room later in her "stay." Her condition was so distressing that he reorganized the caretakers so that more than one person would be there at all times.

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 (hey 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 Quirino1 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 did not provide Johnson a0y. of the Quirino memo! 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

" See Attachment 8.

hospital (Paul Greenwood) was ordered to write a report to CSFSO security offic. 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 con, 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: ....The facts are as follows. Lisa McPherson had been staying at the Fort Harrison hotel after a traumatic car accident. During her stay, she suddenly took ill. After her initial reluctance was overcome, she was driven to see the physician of her choice, but died enroute. Investigation by the Clearwater Police concluded in early 1996 with a determination that the cause of death was a pulmonary embolism exacerbated by a severe staphylococcus infection. [Sgt.] Andrews is quoted [referring to a newspaper article] as saying there is no indication what occurred during McPherson's two week stay at the Fort Harrison. That is a bald faced lie. There are hours and hours of interviews with Church members detailing exactly what occurred during Lisa's stay at the hotel. Nothing in those interviews is the least bit sinister or mysterious, despite Andrews attempts to imply otherwise.

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.

33 These notes are included as attachment 1.

One of the notes is entitled M.L.O. Report, is in Johnson's handwriting and is signed by her as "Jams Johnson, M.O. "'° It is a directive dated the Friday before Lisa's death and indicates: MLO Report 1/12/95 I 1°° Lisa McPherson Given 2gm MgCh Im at 1030 + 2500 mg Chloral Hydrate (capsule pierced and as much possible sqitted into her mouth). She swallowed and fell asleep in the middle of a sentence. Reap rate 18-24. Extremities still cool but not cold. S.D.L.V.'$ needs relief now; I will stay until replacement comes.

Plan: (1) Valerie or watch personnel W/ medical training for Next 8 hrs. (2) Needs 2L fluids when awake and attempt to feed (3) Call if any ?'s prob's.

ML, J. Johnson M.O.

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

3° While this abbreviation presumably stands for Medical Office(r), there is no such office or position. Johnson is referred to as doctor in the caretaker notes.

ss Ile abbreviation S.D.L.V. is an apparent reference to Sylvia DeLaVega.

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 acrd 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 2`d, 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 21", 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 HI (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

36 A copy of Weber's statement is attached as exhibit 9. " A copy of Houghton's two statements are included as exhibits 10 and 11. '° Minkoff's recollection is imprecise as to who was on the phone during these conversations. 20

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. lie 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 5'°, Johnson was at Lisa's room on at least six dates - on November 23rd, November 24"', November 29'", November 30'", December 1", and December 4" - and that she talked with the caretakers or others about Lisa on November 26'", 27'° and December 3`°, 1995. Documents and testimony concerning these dates provide relevant detail concerning Lisa's treatment and Johnson's involvement:

3° Houghton denied any recollection of such an incident.

11/23/95 Security trainee Sam Ghiora who was posted at Lisa's room door from approximately eleven a.m, till 9 p.m for 8-10 days in the middle of Lisa's stay remembered Johnson being at the room on only one occasion, Thanksgiving November 23, for about four hours. While Janis was there Lisa tried to exit the front door and Ghiora "guided" her back inside. Lisa said she doesn't know what's happening and asked Gltiora if he could help her. Ghiora described a number of bizarre behaviors by Lisa, including her "not making any sense," repeating "E. T. phone home," rattling off colors and numbers, and simply not being aware of what was going on around her.

11/23/95 Sylvia DelaVega testified that she began her shift at 3-4 p.m, and stayed until approximately three a.m. the next morning. Heather Petzold was there when she began her shift. During the shift Lisa was saying she was an artist and singing and dancing. Janis arrived around two a.m. Lisa was walking around the room, had hit the lamp and started taking off her clothes. DelaVega was present when Johnson gave Lisa a shot in the buttocks. Initially she stated she didn't know the date, (i.e., the 26'", 27', etc.) but later in statement indicated it was the first day she was on watch, which would be the 23`'. (This witness is a Mexican citizen and is currently residing in Mexico.) Petzold also indicated she was present when Janis gave Lisa a shot in the buttocks but doesn't recall the date. Janis said the shot was to help her sleep but Petzold did not remember if she was told what the substance was.

11/23/95 Leslie Woodcraft testified that she replaced Sylvia DelaVega on the 231 who apparently got burnt out before her shift was over. (She recalled this began around 12 midnight to 2 a.m.) Johnson was there when Woodcraft arrived. Lisa was acting crazy the entire time, calling Janis "mommy," then walking backwards and talking to herself and then talking to Janis again as if she was someone else. Lisa went into the bathroom and turned on all the spigots. Janis gave her a small pill that was supposed to calm her.

11/24/95 After being briefed by Kartuzinski at around 10:30 p.m. (he told them about Lisa's condition and that she had been given medication so that she would go to sleep), Stracener and Pendizini began a watch with Lisa around midnight. Stracener testified that when she first arrived Lisa was asleep. She woke up and began engaging in bizarre behavior, saying she was Michael Jackson, singing, sucking her thumb and licking the wall. She vomited up a dark substance that looked like blood; Ghiora and Kellerhaus came and checked her out and didn't believe that the substance was actually blood. Janis showed up later for about a half-hour and checked out Lisa's mouth. She directed them to give Lisa vitamins and water. Pendenzini confirmed that about two hours after she began watch with Stracener, Johnson showed up at the motel room and helped them change Lisa's clothes. Janis gave her vitamins and orange juice, but did not give her a shot.

11125/95 Houghton administered first dose of Benadryl and aspirin to Lisa using a syringe while others held her. He successfully got her to swallow the concoction and later (he believes) mentioned it to Johnson. He did not ask for consent or explain the procedure to Lisa because he did not believe her capable of understanding.

11/26/95 Sylvia DelaVega testified that on this Sunday she saw Janis Johnson twice; Johnson indicated that Lisa was refusing to take water or food and was refusing protein shakes and sleeping more. (The witness identified this not by date but as second Sunday of watch.)

1/27/95 Houghton, presumably in the early evening, administered a second dose of the aspirin/Benadryl mixture. Houghton believed that Rita and Heather were watching Lisa at the time; she was "gently" restrained during the process. Lisa looked sweaty and red in the face and was talking in non sequiturs. She seemed more agitated than she had on the first occasion of forced medication.

11/27/95 In her caretaker notes Rita Boykin indicates that Lisa had slept only forty five minutes from eight thirty to 12:30 and that she called the M.L.O. to get some instructions. The notes indicate she spoke with "Dr. Johnson" re no real sleep at 4:00.

11/28/95 Houghton testified that he administered the final dose of the aspirin/Benadryi concoction before he leaves for Gainesville later in the day to take dental boards.

11/29/95 Valerie Demange testified that she believes it was on this date that she saw Johnson give a Magnesium shot to Lisa. There was some ambiguity as to the substance injected but at page 43 she indicates that Johnson told her it was Magnesium in the shot to relax her muscles and get some sleep; at 75 she says it was her "impression" that the shot was Magnesium and that Johnson measured Lisa's respiration after the shot and at page 92 she indicates that Johnson told her the shot was Magnesium to relax the muscles. Demange indicates Janice called someone who she asstuned to be Dr. Minkoff for approval prior to the injections'

11/29/95 Chloralhydrate prescription by Minkoff was filled.

11/30/95 is the approximate date of Sam Ghiora's last watch as security in front of Lisa's room. He had been told by Baxter she was not being violent anymore.

11/30/95 Rita Boykin's caretaker notes indicate at lam (which would actually be Friday December 1": "Dr. Johnson just visited, Not possible for her to have any more chloral hydrate. I need to get four more valerian root capsules into her and a quart of fluid."

12/1/95 Johnson issued a note in her handwriting indicating Lisa was given "2 mg of MgCl2 IM" at 10:30 and two 500 mg chloral hydrates. The note indicated Lisa fell asleep in midsentence after getting medication. Johnson noted that respiration is IS-24 and that Lisa's extremities were cool but not cold and that Sylvia (DelaVega) needs relief and Johnson will wait for replacement. The note directs that the "plan" for the next 8 hours is: needs two liters of fluids when awake and attempt to feed. Call if any questions or problems. Johnson has acknowledged in her taped statement of May 1996 that she

Minkoff has adamantly denied that he authorized such injections or provided injectable Magnesium.

noticed Lisa's health deteriorating when she saw Lisa on this date; Lisa looked noticeably thinner.

12/2/95 According to her testimony, Arrunada gives Lisa chloral hydrate on at Janis's instructions to help her sleep. This was because Lisa was too active.

12/2/95 Both Heather Petzold's testimony (her reports are missing) and Rita Boykin's caretaker reports indicate that as of this Saturday, Lisa was considerably weakened and unable to walk. We have no direct evidence that they communicated this deterioration in Lisa's condition to Johnson. Kartuzinski acknowledged this information in his immunized statement.

12/3/95 Although it is not documented in any of the caretaker notes both Rita Boykin and Heather Petzold's current testimony now indicate that Lisa began to improve and regain strength from Saturday. (Petzold did not indicate this in her intitial sworn testimony.) Sylvia DelaVega testified that she saw Janis on this date in the M.L.O. office (she refers to it as the third Sunday rather than by date) and asked he if she had seen Lisa. Janis responded that Lisa was doing better and sleeping better. In Johnson's statement, however, she indicated she was going to be busy over the weekend and asked Laura to watch over Lisa. Houghton testified that he had heard Janis was with Dr. Megan Shields of California over the weekend who was giving physical exams to a number of high level auditors. Other witnesses, including Kartuzinski have confirmed this.

12/4/95 Johnson admits in her statement that when she got back to her regular schedule, she stopped by Lisa's room at about eight on this Monday night to see her. Lisa was already asleep and under the covers, so Johnson alleges she backed out of the room without waking her.

12/5/95 The chronology of events on Lisa's last day is confusing and witnesses conflict on a number of material matters. There appears to be a significant period of time between making the decision to take Lisa to the hospital and actually leaving in a van for New Port Richey. Emma Schamerhom testified in her last sworn statement that she talked with Janis Johnson on either Monday night or Tuesday morning and that she looked concerned. Johnson explained that Lisa looked "septic". Schamerhorn does not believe this was Tuesday night and did not think she had any contact with Janis on the evening of Lisa's death. None of the caretakers, however, remembered seeing Janis at all on Tuesday until Laura paged her on the evening of the Fifth and Johnson indicated in her statement that she did have contact with Emma the night of Lisa's death. Johnson did not know how to get to the hospital in NPR and Emma had come over with a hand drawn map. Similarly, Janet Herring initially testified that she saw Johnson on Tuesday, December 5'° and talked to her about Lisa. Janis had a strange look on her face and looked white, which she interpreted as Janis being distraught. Johnson said she was worried about Lisa and that Lisa was doing worse and she was going to take her to the hospital. Her impression was that there was some urgency and she was going to do it right away. Herring believed this conversation occurred during a break period in the internship

training area which would place it (according to Herring's belief of when the breaks take place) at about 3:45 - 4:00 p.m. In a subsequent October 1998 interview, she testified that she has no idea of the time when this statement took place. The conflicting versions of the timing of Lisa's deterioration and trip to New Port Richey are difficult to reconcile. Heather Petzold and Rita Boykin had the afternoon shift taking care_of Lisa. Laura had left at eight in the morning and was to return around five to relieve Rita. Rita initially testified that she was present when Lisa was given a bath around five o'clock and that Lisa was walking on her own and talking at the time. In her last statement however she insisted that she left before Lisa was given a bath. Laura testified that she returned at five o'clock to replace Rita. Lisa seemed weaker and her eyes were fixed during the bath and she "shit" on herself. Laura believed this was the result of her anal sphincter relaxing - something she considered a sign of possible neurological trouble. She also noticed dark circles around Lisa's eyes. Laura said she left at six o'clock to tell Janis then returned to the room. Heather was with her at this time. Janis came over at approximately seven o'clock and indicated they were going to take her to Dr. Minkoff. Heather testified that after Lisa's bath she left for 45 minutes to an hour at a "normal time" for dinner; she believed it could have been 5:15 toto 6:00 or 5:45 to 6:30. When she returned room was empty and Lisa was gone. She had not seen Janis at all that day or the day before. She recalled in her first statement that Lisa was unable to assist them during the bath, but didn't seem to recall her defecating during the bath or her rectal muscles being dilated. She did indicate, when told of Arrunada's testimony that Lisa's eyes were "fixed," that "that gels." Johnson stated in her taped statement in May of 1996 that at about 7 p.m. she got a page from Laura; it took her about ten minutes to get over there. She was told by Laura that Lisa had diarrhea for almost 24 hours. (Neither Laura nor Heather testified to this; Rita indicated Lisa had some diarrhea but not constant or continuous.) She said Lisa was friendly and said Hi. Lisa was clean and neat, but looked septic; looked very, "majorly" dehydrated with dry membranes and sunken eyes She had hemorrhaging similar to petechiae. She could carry on a conversation, and made sense, but was slow to respond. She agreed to go see Minkoff. Janis said she called Minkoff and allegedly told him Lisa needed to be seen tonight that it wouldn't wait till tomorrow and that she wanted a separate room away from the hoo ha of the emergency room. Johnson realized she didn't know how to get to the hospital and called Emma who ran over a map. She thought it was about a forty minute drive, but it took about an hour. Minkoff testified that he was on duty at the emergency room and received a call from Janis shhortly before seven (it could have been slightly earlier, but he is pretty sure of time frame)." Janis said she was calling about the girl he had issued the prescription for arid thought she had an infection, possibly strep throat. She had had some diarrhea and Janis wanted a prescription for penicillin. Minkoff responded that if she needs a prescription she needs to be seen by a doctor. If she was really sick, she should be taken to Morton Plant.' Janis said she was not and said she would bring her to NPR.

41 Minkoff is quoted in an earlier interview as indicating the call was between 7:00 and 7:45 p.m.

42 A statement to this effect was overheard by another witness in the NPR emergency room.

Minkoff said to bring her soon since he went off duty at ten. He told her not to show at up 9:30. Minkoff does not believe he was told about petechial hemorrhages, or that she was severely dehydrated. Paul Greenwood was a chiropractor who was on staff in the CSFSO in Clearwater. On December 5'° he was studying how to use the e-meter" when called by his superiot Andrea Sprecher a little before eight. (Sprecher confirms she was paged by Janis to help and she assigned Greenwood instead because he was stronger, yet still gentle.) She told him to help take this girl to the hospital. Greenwood went to the Cabanas. Laura was in the room and let him in. Lisa was in the room, lying down with her eyes open, breathing loudly. They carried her to car. Greenwood never saw any voluntary movement by any extremity or any body part nor did he see Lisa ever acknowledge his presence. Lisa did not talk on way to hospital; her breathing changed about halfway to the hospital and became very quiet.

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

°' The e-meter is a device similar to a galvanometer which measures changes in skin conductivity and is used during the auditing process to measure a subjects reaction to questions and phrases spoken by the auditor. The subject holds a metal cannister in each hand. The reactions are measured on a needle. Karmzinski Sworn Statement at pages 72, 76. A copy of this statement is included as Attachment 12.

45 Kartuzinski Sworn Statement at page 43.

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'6 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." 46 Kattuzinski Sworn Statement at pages 38-49. 47 Kartuzinski Swom Statement at page 49. '° Kartuzinski Swom Statement at pages 155, 157.

Kartuzinski claimed he was notified between 5-6 p.m..°9 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 he 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.5' 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 tested 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

" Id. at page 144, 172-174.

50 Id. at pages 19-20.

" Id. at page 23. He assumed without knowing any details that such an examination was done at Morton Plant.

5' Id. at pages 162, 170.

53 Id at page 203.

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

54 See definitions contained in F.S. §765.101 (1998).

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 Ss

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 --deh-__.-. _ . _

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

" Transcript of Kelly Davis statement.

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. ?'he 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 Gsoldsbeny-Weber site 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 Kattuzinski (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 criniiriil proceedings, responded to police inquiries by stating: You have also asked for the person who was in charge of Lisa's stay at the hotel in November and early December. Lisa was not at the hold for services and therefore there was no auditor or case supervisor from the Church in charge. However, Alain Kartuzinski and Jams Johnson periodically received information on her status.[emphasis supplied] 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:

Lisa was sitting on the bed. She was looking maybe a little better actually at that point, so I sat down at the other side of the bed. I said that we-we would be doing some auditing and that-is that all right with her and she said, "Yes," and I said, you know." It would be nice if

you just rested and ate some good meals, took your vitamins in preparation for this auditing," and she said, "Okay, I'll do that."' 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 deiirious and psychotic state a few days later. '1'lterefore, 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.

Kartuzinski Sworn Statement October 13, 1998, at page 72.

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 - spmetimes 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 fma1 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 24'° and 28'° 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 "hopte." 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 chairs' 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 59 Other caretakers also report attempts by Lisa to walk out the door or break the window in the room.6°

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 testirnonies are replete with indications that Lisa spit out vitamins, medicine, food and fluids. Although

n Sworn Statement of Teresa Cezare , May 1997 at pages 28-31. S3 Sworn Statement of Sam Ghiora May 1997, at page 12. 5' Id. at page 22.

"° See, e.g., Sworn Statement of Sylvia DelaVega at page 17; Sworn Statement of Valerie tDemange at pages 85, 92. Statement of Heather Petzold (Hoff) at page 17. Statement of Laura Arrunada at pagel9.

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 instapce, 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. Sate rald 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 franticb3 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."65 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.'

61 Because the caretaker notes are not complete and the recollections and testimonies of caretakers are limited in detail it is difficult to precisely reconstruct the exact amount of fluids and food which Lisa consumed during her 17 day "stay" at the Ft. Harrison.

6'Sworn Statement of Emma Schamerhom at pages 102-106. 6' Sworn Statement of Heather Petzold at page 47. Sworn Statement of Heather Petzold at page 42. Sworn Statement Heather Petzoid at pages 33-35. "s Id. at page 44.

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 iteep her quiet, while trying to take her temperature, while trying to medicate her orally, and while giving leer 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

°' Statement of Heather Petzold.

"' See caretaker note 00154 for Saturday December 2, indicating that Lisa thought caretakers were "psyches or other enemies who wanted to kill her. "Statement of Valerie DeMange at pages 43; 85. Statement of Patricia Stracener at pages 24-25. Statement of Alice Vongrondelle at page 21. Statement of Barbro Wennberg at pages 15, 33. Statement of Rita Boykin at page 84.

6' Statement of Demange at page 43. Statement of Stracener at pages 24-25. Statement of DeLaVega at page 29.Statement of Houghton at pages 55, 143, 175 . Statement of Schamerhom at pages 29, 50-51 and second Statement at page 90. Statement of Wennberg at page 52.

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,'o 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

'° Sworn Statement at page 29. " Sworn Statement at page 169. '2 Sworn Statement at page 21.

n Sworn Statement at page 91. See, also Sworn Statement of Alice Vangrondelle (second statement, April 9, 1998) at page 13. '° Sworn Statement at pages169-170.

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 Courtih 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: It is not enough in order to enjoy the protections of the Religious Freedom Restoration Act to claim the name of a religion as a protective cloak. Neither the government nor the court has to accept the defendants' mere say-so. The court may conduct a preliminary hearing in which the defendants will have the obligation of showing that they are in fact Rastafarians and that the use of marijuana is part of the religious practice of Rastafarians.

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

n Id. at pages 160.161.

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:

Although a determination of what is "religious" belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his or her own standards on matters of conduct in which society as a whole has important interests. (Wisconsin v. Yoder (1972) 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15.)....[Alppellants claim the school is an integral part of their church ministry and to comply with the reporting statute would threaten substantial impairment of the exercise of the Pentecostal faith ....The statute in no way infringes on appellants' religious practice when they are acting solely in the capacity of pastors. However, when, as here, a student seeks assistance from them as administrators of the school, their obligation under the statute arises. While the distinction between the two positions may not always be clear, given the compelling state interest served by the Reporting Act, if the information comes to a teacher/principal/clergyman in any way through the school setting, reporting is mandatory. The compelling state interest furthered by the reporting statute, protecting children from child abuse, justifies any burden on appellants' religious practice ....The State may justify an inroad on religious liberty by showing it is the least restrictive means of achieving some compelling state interest ....[Ilf appellants are held to be exempt from the mandatory requirements of the Reporting Act, the act's purpose would be severely undermined ....[Mere is no other less intrusive way to satisfy the act.

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 tray 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 ofrecording 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. (Dianefcs 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: As a standard of comparison, a Clear is to the contemporary norm as the contemporary norm is to a contemporary institutional case. The margin is wide and it would be difficult to exaggerate it. A Clear, for instance, has complete recall of everything that has ever happened to him or anything he had ever studied. He does mental computations, such as those of chess, for example, which a normal would do in half an hour in ten or fiteen seconds. He does not think "vocally" but spontaneously. There are no demon circuits in his mind except those which might amuse him to set up - and break down again - to care for various approaches to living. He is entirely selfdetermined. And his creative imagination is high. He can do a swift study of anything within his intellectual capacity, which is inherent, and the study would be the equivalent to him of a year or two of training when he was "normal." His vigor, persistence and tenacity to life are very much higher than anyone has thought possible."76

Hubbard, categorized Dianetics as discovering

's Dianetics, at page 242.

"...the exact anatomy of the human mind" The aberrative power of the engrams was discovered. Procedures were developed for erasing them. The amount of benefit from running half a dozen engrams exceeded anything that man had ever been able to do for anybody in the history of the human race."

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 crow 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: The Church doesn't treat mental illness at all... I mean she (Lisa) did the ... she did the usual thing. If you think somebody's mentally ill, then they go and get evaluated. You see... the point of Scientology isn't to treat physical or mental illness .... It's not like Christian Science where you avoid all medical treatments or you're supposed to depend on faith to heal you or something. That's not what's going on." Johnson transcript at pages 58-59.

She further denied that diet, an exercise regimen or any form of counseling would have been used to try to improve Lisa's mental condition and denied knowing what an introspection rundown was." Similarly, Judy Goldsberry - Weber, a Scientologist with a nursing background, was very upset that Lisa was forced medicated without doctor approval and complained to CSFSO authorities about it. She obviously did not consider Lisa's treatment mandated by Church doctrine and questioned why it was allowed to continue, indicating she would have been screaming to Dr. Minkoff for heavier sedation and "IV's." She further stated she had taken people to Morton Plant on many occasions and would have taken Lisa there rather than New Port Richey.

Employees and other Scientologists also acknowledged that forcing services on a non consenting parishioner violates Scientology doctrine.' David Minkoff, who is at OT-8 level Scientologist, and was the doctor who attended Lisa's death, indicated that policy from Hubbard's writings requires that anyone with a mental disease must go through a physical examination. A medical doctor needs to examine the patient and make sure that there isn't anything that could be the cause of the problem." In his second statement, Minkoff

T' Transcript at page 60.

'° Houghton second statement at page 148. Minkoff Second Statement May 19, 1998 at page 68. A copy of this statement is attached as exhibit 7.

" Minkoff Swom Statement April 20, 1997 at page 103. A copy of this statement is attached as exhibit 6. See, Technical Bulletins, Volume 8 at page 327 "The correct action on an insane patient is a full searching clinical examination by a competent medical doctor."

reiterated this concern, indicating that a complete physical including x-rays and possibly an MRI should be done on any "Type III," as Hubbard indicated and Minkoff's experience confirmed that physical illness or injury can be the root cause of a mental condition. Moreover, MInkQff indicated that when the person is incompetent to consent to such procedures, the family is consulted. Thus, a complete physical should have been done at the outset.

Finally, all employees made clear that the giving of shots by M.L.O. employees was not authorized and could only be permitted by a licensed physician. In this case repeated injections were given without patient consent and while she was being held down, without medical authority, by unlicensed and untrained CSFSO personnel.

III. TBE INSTANT PROSECUTION IS NOT SIMILAR TO OR AFFECTED BY TBE PROSECUTION OF BENRY LYONS FOR HIS INDIVIDUAL CRIMINAL ACTIVITY.

The defendant suggests that the instant charges cannot be reconciled with the State Attorney's Office's failure to charge the National Baptist Convention with the crimes committed by its president, the Reverend Henry Lyons. The assertion is based on the stated but unsubstantiated conclusion that "Lyons was the Convention's most senior official and that the Convention explicitly ratified and affirmed the acts of Reverend Lyons." While there was evidence that Lyons arguably embezzled or misappropriated a large amount of money from the Convention, Lyons was never charged with these crimes. It was these defalcations and only these that were ratified on behalf of the purported victim, the NBC. The ratification by the.Convention occurred after an inquiry by the Reverend E. V. Hill who investigated solely whether monies from the convention itself had been misappropriated.' The resolution plainly states that "there have been no indications of misappropriation of convention funds or wrongdoing on the part of Dr. Henry Lyons which would pre-empt his continued service to this convention as president."

'° Deposition of E. V. Hill in State v. Henry Lyons and Bernice Edwards, Case No. CRC 98-03449 CFANO. December 30, 1998, at pages 5-8. Trial Testimony of E.V. Hill, February 10, 1999, at pages 55-63.

Lyons was ultimately charged with fraud against a series of business corporations and the conversion of charitable monies entrusted to him by the Anti-Defamation League. There was never an allegation that the National Baptist Convention, USA, Inc., itself was involved in Lyons' criminll acts. Rather, the evidence adduced during the investigation and confirmed during trial indicated that Lyons fraudulently invoked the Convention's name to defraud large corporations into the payment of monies into bank accounts that he controlled but which were not revealed to the Convention itself. These thefts were clearly motivated by Lyons' personal greed and allowed him to support mistresses, buy vacation homes and live a lavish lifestyle. Lyons continued to mislead the public and the Convention as to his guilt, causing the faithful among his followers to continue to believe in his innocence.

In the Lyons case, the State had the opportunity through tracing bank records and interviewing the victims of the case to reconstruct Lyons crimes and build a case against him individually. The unsubstantiated suggestion that the State has intentionally avoided individual charges ignores the difficulties the State was facing in proving individual guilt when the only witnesses to establish the necessary facts were paid employees of the defendant, some of whom lied to the police and who refused to give sworn testimony without being granted use immunity. Moreover, crucial documents had been lost or destroyed by CSFSO and were unavailable to investigators.

The defendant's Motions incorrectly assume that evidence admissible against the corporation must necessarily be admissible to prove charges against individual defendants and that proof of corporate guilt, including criminally negligent omissions, necessarily subsumes proof beyond a reasonable doubt as to which individual actors are criminally responsible. 46

IV. NEITHER THE FLORIDA NOR FEDERAL CONSTITUTIONS MANDATE THE ACCOMODATION OF CRIMINAL ACTS ALLEGEDLY MOTIVATED BY A DEFENDANT'S RELIGIOUS PRACTICES.

The First Amendment of the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." For over one hundred years, however, the Supreme Court has distinguished between the right to hold a religious belief, which is uniformly sustained, and the right to engage in a religious practice or conduct that violates the criminal law. In Reynold v. U.S., 98 U.S. (8 Otto) 145 (1878), the Court considered the issue of whether a Mormon convicted for the federal crime of bigamy in the Utah Territory should have been acquitted if he married a second time because he believed it to be his religious duty. Rejecting this proposition the Supreme Court held that religious beliefs cannot justify the commisison of an act made criminal by the law of the land. The Court noted: ...the only question which remains is, whether those who make polygamy a part of their religion are exempted from the operation of the statute. If they are , then those who do not make polygamy part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. Laws are made for the govemment of actions, and while they camtot interfere with mere religious beliefs and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously contended that it was her duty to burn herself on the funeral pile of her dead husband, would it be beyond the power of the civil govemment to prevent her belief into practice?... Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances ...[Wlhen the offence consists of a positive act which is knowlingly done, it would be dangerous to hold that the offender might escape punishment because he religously believed that the law which he had broken ought never have been made.°'

Two years later the Supreme Court made it clear that these principles apply equally to a Church itself, not only the individual adherents, and that the corporate entity could not escape the consequences of its criminal conduct. In The Late Corporation of the Church of

Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890), the Court upheld an

s' Reynolds v. U.S., 98 U.S.(8 Otto) 145 at 166 (1878).

act of Congress which, as a result of the Church's involvement in polygamy, repealed the act incorporating the Mormon Church as a religious corporation, abrogated its Charter and forfeited all Church property not used for religious worship or burial. The Court ruled that the pretense of religious belief cannot deprive Congress of the power to prohibit polygamy and all "other open offenses against the enlightened sentiment of mankind." Speaking of the Church's endorsement of and practice of polygamy, the Court stated:

One pretence for this obstinate course is, that their belief in the practice of polygamy or in the right to indulge in it, is a religious belief, and therefore, under the protection of the constitutional guaranty of religious freedom. This is altogether a sophistical plea. No doubt the Thugs of India imagined that their belief in the right of assassination was a religious belief, but their thinking did not make it so. The practice of suttee by the Hindu widows may have sprung from a supposed religious conviction. The offering of human sacrifices by our own ancestors in Britain was no doubt sanctioned by equally conscientious impulse. But no one, on that account, would hestiate to brand these practices, now, as crimes against society, and obnoxious to condemnation by the civil authority !2

These principles remain valid today. See, Potter v. Murray City, 760 F.2d 1065 (10"' Cit. 1985). A full century after its decision in Reynolds, the Supreme Court reaffirmed that decision's vitality in Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990): Alfred Smith and Galen Black had been fired from their jobs with a private drug rehabilitation company and then denied State unemployment compensation all as a result of their use of an illegal controlled substance, peyote, in a sacramental ceremony of the Native American Church of which they were members. On initial remand, the Oregon Supreme Court had determined that Oregon law contained no exemption for the religious use of peyote; the Oregon Court had fiirther ruled, however, that the absence of such an exemption and the resulting denial of unemployment compensation due to misconduct violated Smith's and Black's religious freedom. The United States Supreme Court disagreed, and distinguished prior cases which had dealt with hybrid claims involving freedom of religion and other constitutional rights arising out of the denial of unemployment claims. The Court noted that it had never held as Smith and Black urged that "when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the

32 Late Corporation, supra at page 49.

conduct must be free of governmental regulation." Rejecting this argument, the majority, quoting the Reynolds decision, ruled: We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of.more than a century of free exercise jurisprudence contradicts that proposition. As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. Of Ed. V. Bobitis, 310 U.S., 586, 594-595 (1940): 'Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved tire individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities (footnote omitted).' We first had occasion to assert that principle in Reynolds v. United States, 98 U.S. 145 (1879), where we rejected the claim that the laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. 'Caws,' we said 'are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices... Can a man excuse his practices to the contrary because of his religious belief! To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.'°'

The Court also noted that it had never used the compelling state interest test to invalidate a state law with an across the board criminal prohibition on a particular form of conduct. It held that such an approach would be unsound and would conflict with the vast majority of its free exercise cases. To make the government's ability to enforce generally applicable prohibitions of socially harmful conduct depend on "measuring its effects on a religious objectors spiritual development" or to make his obligation to obey such a law contingent upon the law's "coincidence with his beliefs" would contradict "both constitutional tradition and common sense." Use of the compelling government interest requirement, as the Court had in the past when evaluating racial discrimination or restrictions on free speech, was not "remotely" comparable to the evaluating such general laws of neutral application. "What it [the compelling state interest test] produces in those other fields - equality of treatment and an unrestricted flow of contending speech - are constitutional norms; what it would produce here - a private right to ignore generally applicable laws - is a constitutional anomaly."

° Smith, supra., at 879.

The majority ruled that because our country's diversity of belief and the value placed upon or that religious divergence, society could not afford the luxury of deeming presumptively invalid every regulation of conduct that does not protect an interest of the highest order. Such a rule the Court said:

Would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable- ranging from compulsory military service, ew, e.g., Gillette v. United States, 401 U.S. 437 (1971); to the payment of taxes, see,e.g., United States v. Lee, supra; to health and safety regulation such as manslaughter and child neglect laws, see, e.g., Funkhouser v. State, 763 P.2d 695 (Okla. Crim.App. 1988); compulsory vacination laws, seM, e.g., Cude v. State, 237 Ark. 927, 377 S.W. 2d 816 (1964); drug laws, see, e.g., Olsen v. Drug Engorecment Administration, 279 U.S. App. D.C. 1, 878 F. 2d 1458 (1989); traffic laws, sM, Cox v. New Hampshire, 312 U.S. 569 (1941); social welfare legislation such as minimum wage laws, sM, Tony and Susan Alamo Foundation v. Secretary of labor, 471 U.S. 290 (1985); child labor laws, seM, Prince v. Massachusetts, 321 U.S. 158 (1944); animal cruelty laws, see, e.g., Church of the Lukumi Babalu Aye Inc., v. City of Hialeah, 723 F.Supp. 1467 (S.D. Fla. 1989), cf., State v. Massey, 229 N.C. 734, 51 S.E. 2d 179, appeal dism'd, 336 U.S. 942 (1949); environmental protection laws, see, United States v. Little, 638 F.Supp. 337 (D.C.Mont. 1986); end laws providing for equality of opportunity for the races, see, e.g., Bob Jones University v. United States, 461 U.S. 574, 603-6G4 (1983). The First Amendment's protection of religious liberty does not require this."

The Court noted that a number of states had made exceptions to their drug laws for the sacramental use of peyote. To say that such an exemption may be permitted, however, the Court said, is not to say it is constitutionally required: It may fairly be said that leaving accomodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferrred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of religious beliefs."

Allegations by the defendant that criminal charges against it, as a "church," are "virtually unprecedented in the history of the United States" is disingenuous at best. Moreover, the defendant's elaboration on this assertion, that "Indeed, with one minor and illchosen exception, in no reported case was a church even charged with a criminal offense" is inaccurate and misleading in its present context. So, too, is the defendant's claim that "The

°" Id., at 888

85 Id., at 890

historical fact that in no reported case has a church in this country ever been criminally convicted stands as irrefutable evidence that such prosecutions are not necessary to protect the State's interest in enforcing its criminal laws."

CSFSO ignores certain obvious historical facts. The seminal case of Reynolds v. United States, 98 U.S. (8 Otto) 145 (1878), for example, was one of several criminal prosecutions of Mormon bigamists by the United States Government in the Territory of Utah, in a process that ultimately led to the complete dissolution of the corporation under which the Mormons operated, and the seizure of corporate property by Federal officials operating under the auspices of the United States Attorney General. The Late Corporation of the Church of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890). While not technically a prosecution, the Federal Government's dissolution of the Mormon church and decision to proceed by information to forfeit church property far exceeded in scope and effect the current effort by the State of Florida to hold the defendant responsible for the unlicensed practice of medicine on, and abuse and/or neglect of Ms. Lisa McPherson, a disabled adult.

In limiting its language to the history of the United States the defendant has intentionally chosen its words carefully. Its counterpart, the Church of Scientology of Toronto, Inc., was in recent years tried for and convicted of breach of trust, fraud and other crimes in Canada. Regina v. Church of Scientology of Toronto, et al. (1997] 116 C.C.R. 1. The Toronto case is particularly telling as to the authority of a democratic state to prosecute a corporate "church" for violations of criminal laws. The Church of Scientology of Toronto had argued that corporate liability was inappropriately applied to a religious non-profit corporation and that the right to religious freedom under the Canadian Charter of Rights prohibited prosecution of a religious corporation. Applying the Canadian equivalent of "strict scrutiny" analysis, the Canadian Court rejected the claims and upheld the corporation's conviction.

was held in the county jail in default of payment. He sought release by virtue of a statute enacted a month after his conviction which provided relief to indigent persons indefinitely confined for failure to pay a fine in a criminal case. The Court granted relief, ruling that application of ftpew statute was not precluded by (then) Article III, section 32 because the new statute did not in any way affect the State's ability to prosecute or punish aggravated assault:

We do not discover, nor is there, in the act of of May. 25, 1891, anything which purports to repeal or amend the act of 1881. Any offense committed under the act of 1881 prior to the approval of the latter act, or even sugsequent to it, can be prosecuted and punished in the same manner as could be had the act of 1891 never been enacted. The offenses defined or created by the former act, and the punishment demanded against any of them by it, are in no wise changed or affected by the act of 1891; and a court would look in vain to the latter act to find in it anything changing either the nature of the offense created, or even the character or degree of the punishment authorized by the act of 1881. In so far as the act of 1881 authorizes the prosecution or punishment of any person, it is not affected by the act of 1891. The same punishment may be inflicted, and the same form of sentence is to be entered, as before the approval of the latter act. The form of sentence which has been used in this case is that ordinarily used. In addition to judgment that the petitioner pay the fine and costs, it orders that the sheriff 'keep him in custody until the judgment of the court is complied with.' This order as to custody is not part of the punishment authorized by the act of 1881,. lemphasis supplied] Thus, the Court ruled that the 1891 act had no effect on the prosecution or punishment of the defendant under the pre-existing statute. It's only effect was on additional language in the sentence relating to imprisonment for failing to pay the fine, language which was not authorized under the 1881 Act.'

Consistent with Ex parse Pells, Florida Courts have held that retrospective application of a separate and superficially unrelated enactment would violate this provision if the later act

°9 Relying on kx parse Pells, the Supreme Court in State v. Watts, 558 So.2d 994 (Fla. 1990), found that a 1985 amendment of the youthful offender statute (Section 958.14) changing the sentence that could be imposed upon revocation of community control could be applied where the conduct constituting the violation occurred after the statute's enactment. The Court noted that the change was to a statute different from that defining the crime or the initial punislunem and which had no direct connection to either. Quoting from E_r pane Pells, the Court ruled that the statutory change in no way affected prosecution or punishment for any previously committed crime, holding that "an offense committed prior to or subsequent to the 1985 amendment can be prosecuted and punished in the same manner as it could be had the ' 1985 amendment' never been enacted." Subsequently, however, in Arnette v. State, 604 So.2d 482 (Fla. 1992), the Court revisited this amendment and ruled that the statute did not in fact change the sentence which could be imposed on a violation and was simply a clarification of the legislature's prior intent that defendants sentenced as youthful offenders retain their status even if convicted of community control violations.

affected the prosecution or punishment for a previously committed crime. In State v. Pizarro, 383 So.2d 762 (Fla. 4'° DCA 1980), the Court held that the initial Youthful Offender Act, enacted as a new statute in 1978, (Chapter 958) could not be applied to a defendant whose crime was committed before its effective date. The Act did not specifically state it was amending, superceding or repealing prior statutes, and claimed only to create an "additional" discretionary sentencing option for defendants of a certain age who met certain criteria. Accord, Page v. State, 687 So.2d 1357 (Fla. 3' DCA 1997); Bradley v. State, 385 So.2d 1122 (Fla. 1' DCA 1980); Allen v. State, 383 So.2d 674 (Fla. 5"' DCA 1980). Additionally, in Carawan v. State, 515 So.2d 161 (Fla. 1987), the Supreme Court had overruled existing precedent construing the statutory and constitutional provisions relating to double jeopardy to hold, in essence, that a single act could not form the basis for more than one conviction. The legislature promptly added an additional subsection to 775.021 declaring its intent that the Blockberger test (rather than the test articulated by the Carawan Court) be reinstated as the test for double jeopardy. Despite the legislature's intent to overturn the Carawan decision and return law to its pre-existing state, Florida Courts have consistently held, based upon Article X, Section 9, that the addition to Sec. 775.021 can not apply to the prosecution or punishment of crimes committed prior to its effective date. Scarpillo v. State, 576 So.2d 377 (Fla. 4`° DCA 1991); Collins v. State, 578 So.2d 30 (Fla. 4'" DCA 1991), overruled on other grounds, 634 So.2d 1103 at 1106. Collins v. State, 577 So.2d 986 (Fla. 401 DCA 1991).

Applying the standards of Ex parse Pelts to the instant case, it becomes clear that RFRA is a statute significantly "affecting" prosecution and punishment and cannot be applied to immunize the defendant from its previously committed crimes. By its own terms, RFRA creates a previously nonexistent "defense" which may be asserted by some but not all persons and purports to supereede existing statutory and case