Mark Rathbun: The Battle of Portland (May 28, 2013)

CHAPTER TWENTY-TWO
THE BATTLE OF PORTLAND

Men in general judge more from appearances than from reality. All men have eyes, but few have the gift of penetration. — Niccolo Machiavelli

Everything hung in the balance at the spring, 1985 trial of Julie Christofferson-Titchbourne vs Church of Scientology. This was the very case that my brother’s friend had tried to tell me about in 1977 in Portland, when he was making an effort to get me out of Scientology. Christofferson was a young woman who had taken a simple Communication Course. It was the very Communication Course that I had taken, at the same Portland mission I’d attended.

Christofferson had, however — according to her — an experience completely opposite to my own in taking the course. She and her Flynn-allied attorney Garry McMurry claimed that she was defrauded into taking the course in the first place, by false representations about L. Ron Hubbard’s credentials and Scientology’s scientific guarantees to bring her health, joy and happiness. According to the lawsuit, the course hypnotized Christofferson and the mission subsequently used that hypnotic state to turn her against her family. The case had originally gone to trial in 1977, and a Multnomah County jury had returned a verdict in her favor for more than two million dollars.

In 1982, the Oregon Court of Appeals reversed and remanded the case for new trial. The appeals court decision was one of our first major religious recognitions. While Miscavige took full credit for the victory with L. Ron Hubbard, in fact he had served as little more than a nuisance to its accomplishment. The case had already been argued and was pending decision when Miscavige’s Special Project came on the All Clear scene in 1981. His then-deputy Starkey had attempted to intervene in the matter, and wound up blowing off the attorney who would ultimately win the great precedent, Charles Merten.

Merten refused to re-try the case because of his disgust with the church’s new order. But he had already briefed and argued the appeal of the 1979 verdict, so there was no way for the Special Project to mess that up. Had it not been for the original Christofferson case appeals court decision, we likely would not have attained several of the more minor — but useful in their cumulative effect — religious recognition precedents we did wind up achieving through the perilous fight for an All Clear.

A new trial lawyer had been retained in Portland to try the case. Ted Runstein was a personable, seasoned and successful trial attorney. He was, however, demoted to ride shotgun to Earle Cooley and keep his mouth shut as local counsel after saying something for which Miscavige never forgave him. Runstein had suggested that “the jury needs to hear from some real Scientologists from the witness stand.” Miscavige replied that we have plenty of Scientologists on our witness list. Runstein countered, “Those are all Sea Org staff; I am talking about having them hear from Scientologist parishioners who live and work in the same community as the jurors — real Scientologists.” Miscavige snapped, “Sea Org members are real Scientologists, public Scientologists are dilettantes.” Miscavige ruminated on this affront by Runstein throughout the trial, calling him a “theetie-weetie, airy-fairy idiot” behind his back.

So when Earle Cooley rolled into town he had free rein.

David Miscavige, as the chairman of the board of Author Services, would spend the next several weeks in Portland supervising and dictating every last detail of the trial. He was going to show me, the dozens of other attorneys he categorized as “defensive losers,” and the entire OSA network how a trial was conducted, Scientology style. No more counter-intention from lawyers who knew best. He had a soul mate in Earle, so that in his view L. Ron Hubbard’s slash-and-burn policies with respect to detractors and attackers would run into no internal interference. David Miscavige would prove to Ron once again why he needed him to ramrod his intentions through. Hubbard himself was apparently incommunicado, as evidenced by little to no dispatch traffic arriving — which made Miscavige’s two-month, full-time battle of Portland stint possible.

We rented a number of units at a downtown condominium, walking distance from the courthouse. One unit was inhabited by Earle, his long-time mistress Jeannie and their fourteen-year-old son. Another one-bedroom unit was occupied by Miscavige and me. Another was reserved for a couple of Office of Special Affairs staff, and served as a document preparation area and repository. We had a dozen more staff working out of the offices of the mission, which were only a few blocks away. One more condo unit was occupied by Earle’s partner and protégé, Harry Manion.

Harry would prove pivotal to the case, though he did very little speaking in court. Harry was in his early thirties. A big, strapping man — if overweight, like Earle — with a boyish face and an infectious smile and personality. Harry was the archetypal hale fellow well met. He had a glib, friendly word for everyone he encountered, and a natural ability to make people feel comfortable and light. Harry had something else going for him. He was a former college and minor-league professional baseball player, and that really meant something to the judge.

Judge Don Londer was respected by many locally. But because he was Jewish, he was not really accepted into Portland’s traditionally WASP judicial circles. Londer consider himself an old jock, often reminiscing about his boxing career during his younger days in the Navy. He was also a decent, considerate man. However, he was not very bright. In the condo we used to joke that maybe he had his lights knocked out one too many times during his boxing career. But because Harry was a real professional athlete, in Londer’s eyes Harry could do no wrong. Harry struck up a relationship gradually by arriving a little early to court, and thus “bumping into” the judge regularly. The latter always wanted to hear jock war stories from Harry. Harry was the son Don Londer wished he had fathered.

In Miscavige’s view, the Christofferson case was the perfect test case. Christofferson had only ever had a few months engagement with Scientology. She had spent a total of $3,000 on auditing and courses. She had not been harassed by the Guardian’s Office. The court of appeals had already ruled that she could make no case for infliction of emotional distress/outrageous conduct.

Her only remaining cause of action was for fraud. The court of appeal had even narrowed the issue to whether the representations made to her were motivated by sincerely-held religious belief.

In retrospect, it was probably the stupidest move imaginable to not settle the case before trial, for those very reasons. Christofferson claimed fraud primarily based on alleged false representations about L. Ron Hubbard’s pre-Scientology credentials. These were the very issues aired in the Armstrong case, which had made an All Clear all but unattainable. By going to trial, we were affording a woman — who effectively had no damages to claim — a worldwide platform to replay the Armstrong inquisition all over again. Except this time Flynn’s stable of witnesses was bolstered by the former Executive Director of International Scientology, Bill Franks, and the former head of the organization Christofferson had interacted with — the Scientology Mission of Portland, Martin Samuels.

Samuels had been the owner of the Portland mission when both Christofferson and I were parishioners there. He was the owner of the Portland mission when the first Chistofferson trial played out. Samuels had joined the Flynn camp shortly after being expelled, during Miscavige’s mission holder purges of 1982. Samuels testified in the first Christofferson trial on behalf of the church. In the second trial we knew that he would testify that the mother church had not only run every single detail of the trial, but even forced Samuels to lie on the witness stand. And thus Christofferson II was rather a cinch for the Flynn camp to hit the mother church with a sizable judgment (something that had not occurred in the first trial).

But Miscavige — and thus we — looked at it in the simplistic, black-and-white, good-vs.-evil worldview of L. Ron Hubbard. This was our big opportunity to play it all over again. In our view, the 1979 Chistofferson verdict had been what motivated Flynn and FAMCO in the first place.

All of the testimony in the Armstrong trial (including that of Armstrong and Laurel Sullivan) came pouring into the record. More horror stories were added by Samuels and Franks, and by a host of other witnesses. Miscavige and I directed a couple dozen staff, frenetically working through each and every night to provide Earle with material to discredit each witness on cross examination. While direct examination was still in progress, I, Miscavige and several other staff would pore over the real-time transcripts being relayed from court, marking them up for every bit of discrediting documentation we had available in a massive file room at the mission. When the court day ended, we would huddle with Cooley and outline the preps required for the cross exam the next morning. The crews stayed up until 1 or 2 every night, putting the material together and getting final ok from me and Miscavige. Then we would sleep for two to three hours, wake up at 4 a.m. and prepare to meet Earle in his condo at 5 a.m. We would spend the next three hours briefing him on details about how each witness had lied, exaggerated, and twisted the truth or was somehow morally reprehensible. We liberally used material from the ethics records from their days in the church, even copying internal reports to use on cross. This went on for weeks. We continually engaged in echo-chamber, confidence-reinforcing sessions, reviewing how Earle had so thoroughly destroyed each witness’ credibility.

There were external indicia to support our overconfidence. Earle Cooley brutalized the plaintiff’s witnesses on cross examination. So dramatic were his cross exams, that each day Earle was up, the courtroom was packed with local lawyers. They had no interest in the case itself, but Earle’s cross examinations were so dramatic that word had spread through the legal community that Cooley was the best show in town. They were there only to watch a master of their own trade at work. What we were blind to was the cumulative impression that so much manhandling conveyed.

We received a wake-up call of sorts in the middle of the plaintiff’s case, but collectively chose not to heed it. We had planned to enter the covert Armstrong-Griffith-Park surveillance tapes into evidence during the cross examination of Armstrong. Earle set up Armstrong masterfully, leading him to deny that he had ever talked to anyone about taking over the church, orchestrating federal raids, and least of all manufacturing and planting documents in church files. Then Earle started quoting Armstrong from transcripts of the surveillance tapes, clearly demonstrating he was lying from the witness stand. The warning we did not heed came in the form of Judge Londer’s reaction to the courtroom spectacle. In chambers he loudly chastised the church’s behavior in being involved in such cloak-and-dagger activity to begin with. Londer, who clearly did not think much of Chistofferson’s case based on comments he had made up to that point in the trial, was more disgusted with the secret video-taping than the lies they revealed. Had we not been so thoroughly in the throes of a thought-stopping, alternate-reality creation, we might have given thought to how the jury felt about the aggressive, “gotcha” manner we were using with all the plaintiffs witnesses.

Even though it backfired in the case at hand, getting the Armstrong surveillance videos on the public record would serve as a major step in dealing with the more serious government threats of criminal indictments then still extant. The stakes were far higher than merely the Chistofferson case, and there was a great deal of tension in getting the tapes put on the record. We did not want to submit the producer, private eye Gene Ingram, to cross-examination, for fear that he would be forced to disclose anything about the increasing number of operations he was privy to. In the course of coordinating the transportation of the tapes to Portland and into the hands of church coordination attorney John Peterson, Miscavige insisted upon bypassing me and speaking directly to Ingram — something he had not done up to that point in time. I advised him that was a bad idea, should Ingram or he ever be subject to deposition.

I picked up the phone to make the call to Ingram, and Miscavige came flying at me — tackling me into a sofa and attempting to wrestle the phone from my hand. I would not relinquish my grip even though he was strangling me. I threw my chest out to buck Miscavige from me. He violently stabbed his fist into my chest and said menacingly, “Don’t you ever cross me,
motherfucker! I’ll have you declared [excommunicated] in a heartbeat if you ever fuck with me again.” I looked Miscavige in the eye for a moment and considered the weight of that statement. For four years no one on planet earth could communicate to L. Ron Hubbard but through Miscavige — not even his wife. Miscavige was the recipient of personal communications on a weekly basis from Hubbard — but for the extended periods the latter went incommunicado entirely. He was right, he could have me declared in a heartbeat, and all I’d fought for to date would have been for naught. I handed him the phone. He had established himself — much as he had done with Mary Sue Hubbard — as boss buffalo.

So dramatic were Earle Cooley’s cross examinations that we were all swept into the sweet oblivion of the drama of it all. We heard from Judge Londer, through Harry, and we heard from dozens of lawyers who attended as spectators and students: Earle Cooley was magnificent. Earle huddled us up in the condo one evening over beers.

“Have you guys ever heard of Percy Foreman?” Earle asked us.

We all replied that we had not.

“Foreman was one of the premier trial lawyers in American history. He once defended a woman who was up for a murder rap in Miami. The government brought a bunch of scumbag convicts in to bolster their case against her. Foreman demonstrated on cross examination that the testimony was obviously paid for. When he saw the jury understood that, he surprised everyone. After the case in chief, he rested the defense without calling a single witness. He wanted those cross examinations fresh on their minds when they went to deliberate.”

“Brilliant!” exclaimed Miscavige. “We don’t want to serve up our people to McMurry anyway.”

“Exactly,” Earle replied, “sending in Runstein and his ‘real Scientologists’ would be like sending sheep to slaughter.”

“You’re fucking-A right, Earle!” Miscavige proclaimed, as final authorization of the strategy.

And so Earle Cooley shocked the judge, the plaintiff’s team, and all who were watching when he announced the next morning in open court that the defense would call no witnesses, and rested. Judge Londer thought it was a great idea. He didn’t want to sit for another several weeks on this case. And he agreed with Earle that the plaintiff had never made a case worth a hill of beans. It was judge Londer’s nonchalant manner of dealing with jury instructions that helped set us up for the shock of our lives. Londer told Earle and Harry to relax on their stressed arguments to attempt strict control of the jury before their deliberations began. He said, “Hey, what has she got, three grand in damages? The jury isn’t stupid.” And so, with the judge’s assessment of the merits, we were optimistic — albeit nervous — as we awaited the verdict.

Nobody was prepared for the result. On a Friday afternoon the jury awarded Christofferson $39 million. That not only buried any idea of an All Clear, it put the church’s very future at risk. Earle Cooley wasn’t sure why he did it, but he asked the judge to hold off on recording the verdict for a few days. The judge wasn’t sure why either, but he granted Earle’s request.

Miscavige had flown back to Los Angeles after closing arguments. Cooley left that night for Las Vegas to blow off steam and to try to deaden the devastating loss with a weekend of amnesiainducing recreation. In a way, I was left alone holding the bag at the scene of the crime. Early Saturday morning I met with two associates of our local counsel in their Portland office. We frantically traded ideas for challenging the verdict before the case went up to the court of appeals for the two-to-three-year appellate process. One of the associates was a cheery, bright British woman. She came up with a wild idea. Since the verdict had not yet been recorded, we could still make a motion concerning the case before the lower court. That court retained jurisdiction until such time as the verdict was recorded.

We reckoned that since there were motions brought by our side continuously, against prejudicial matter being entered into evidence throughout the trial, and since those motions had been consistently denied, there was no way to challenge rulings already made along the way. However, what if we brought a motion for mistrial based on what was put before the jury during closing arguments? That was the one small window of trial history we had not already brought legal challenges to. With Cooley incommunicado, we got busy dissecting the transcript of the closing arguments to find something, anything we could hang our mistrial motion on. We noted some particularly prejudicial statements that plaintiff’s counsel had made, and drafted a motion for mistrial on the basis that the statements were so outrageous and prejudicial as to have potentially caused the jury to act on passion and prejudice, rather than on the evidence presented over several weeks of trial.

When Cooley returned at the end of the weekend, he thought the motion was brilliant. We filed it early the following week. Harry Manion artfully used his weeks of informal credibility-and-sympathy- building with judge Londer to obtain his agreement to set a hearing for a few weeks down the road, to consider the motion. Londer would not and did not ever record the jury’s verdict.

Miscavige returned to Portland and we had a conference in Cooley’s condo with a couple of legal staff. Miscavige was distraught and desperate. He talked of moving L. Ron Hubbard and Scientology management to a South American country in order to assure the church’s future survival. We discussed how with a 39-million-dollar judgment being publicized internationally, the three dozen similar FAMCO suits heading toward trial, and the DOJ and IRS champing at the bit to clean up anything remaining after the damage was done, the United States was about the least safe territory in the world for Scientology.

Miscavige railed about the stupidity of Judge Londer, how he continued to allow the trial to go out of control while reassuring us that the worst-case scenario was a few thousand dollars in damages. He ruminated how a mighty institution like Scientology could be brought to its knees by a group of degraded “wogs” (non-Scientologists) from a cow town. His own characterization prompted a lightning bolt from the blue.

“I got it!” he exclaimed. “We’ll take over this shit-hole town. I’ll bring in one hundred thousand Scientologists from around the world and we’ll surround that courthouse and make this town comply. We’ll overwhelm them. We’ll overwhelm not only the judge but every other criminal judge he talks to in his town.”

The battle of Portland had only just begun. We called in every Public Relations officer assigned to every church of Scientology in the world (several dozen) and gave them orders to call every person who had ever taken a service at each local church and order them to get to Portland for the biggest, most important event and contribution they would ever make to Scientology. Ken Hoden was pulled out of mothballs and put in charge of the “religious freedom crusade.” Hoden had been the Guardian’s Office person in charge of external affairs in Portland during the original Christofferson case appeal. Miscavige and Starkey had busted him and relegated him to backlines PR work in Los Angeles back in 1981, when they decided he had screwed up the appeal of the original case (the result of which was ultimately the vacating of the original two million-dollar judgment, and Scientology’s strongest religious recognition to date). But now Hoden was integral — he was the only one who knew the ropes in Portland, as well as all allies of the church and public officials in the Portland area. Hoden was instructed to wear a religious “dog collar” shirt and coat at all times in public. He would be the spokesman and he would position all utterances along the line that the Christofferson judgment was the worst assault on religious freedom in the United States in modern times.

Within days, several hundred Scientologists had shown up in Portland. Hoden organized them up, made signs and began regular marches around the courthouse. The trademark chant of the crusade echoed down the streets of Portland:

Hoden: “What do we want?”
The crowd: “Religious freedom!”
Hoden: “When do we want it?”
The crowd: “Now!”

Initially, the protesters came across as angry, in compliance with Miscavige’s orders to intimidate the city into compliance. As Miscavige was back in LA, and there was no allowance
for discussion of mitigation of his ideas, instead Hoden discussed with me the need to tone it down and create a far less threatening and far more dignified presentation. I told Ken he was right, and told him follow his instincts, just learn to report to Starkey and Miscavige in the language they liked to hear. That was to emphasize, in briefing them, how loud you were, how numerous you were, and how shocked and awed the public watching was — while taking a slightly different approach in conducting affairs on the ground. It was an art I had come to learn out of necessity, to avert many church catastrophes over the years.

Ken got the knack of how to play shock absorber to the brass — and did a masterful job in controlling the masses in a fashion that had maximum impact. Over the next week, thousands of Scientologists showed up and the regular protest marches easily surrounded the entire block the courthouse occupied, with parishioners marching in ranks of several abreast. Hoden took care to brief each arriving Scientologist on the importance of being polite and friendly, cleaning up after themselves and generally creating a good impression of “regular Scientologists.”

We wound up having two hearings before judge Londer, separated by several weeks. As much as the crusaders were creating the impression we wished they would, Londer could not wrap his wits around the constitutional arguments we were making. In one chambers meeting with counsel, he uttered something which, despite the public relations gains we were making with the “religious freedom campaign,” flagged our hopes of success. Earle Cooley had made a lengthy presentation, backed by citations to court case precedents. Londer had seized on one particular case that Cooley cited, buoying our attorneys’ hopes that he might understand and adopt our position. After a back-and-forth conversation about its parallels to the case at hand, Londer shocked them all by saying, “Wait a second. That was a court of appeals decision; this isn’t a court of appeals.” Of course, all legal precedent is created by opinions rendered by courts of appeal, and these are binding law for the lower courts to apply and follow. Londer’s statement belied a challenged cognitive capacity. As Earle Cooley put it, “Oh my God, we’re in the hands of the Philistines!”

We kept orchestrating Harry’s having “chance” encounters with Judge Londer, hoping to divine where he stood and hoping that he might begin to understand this case was not only important to the church and Earle, but to Harry’s future. Try as he might, Harry would come back from his meetings befuddled. His refrain was that Londer was as dumb as a sack of rocks, and he couldn’t tell whether anything we were presenting was getting through.

On the afternoon prior to the final hearing and the announcement of decision on the mistrial motion, Earle, Harry and I sat in Earle’s hotel room in Portland preparing our arguments. We had a last-minute brief to file, and had purposely waited until mid afternoon, when we knew Londer took a break. That way, when Harry was bringing the brief into the clerk, Londer might see him and invite him into his chambers for a chat. That went like clockwork. Earle and I beseeched Harry to call in any chips he might have with Londer. Earle told Harry to tell him outright that Londer needed to do this for Harry. Harry reported back that he had schmoozed with Londer, but that it wasn’t appropriate under the circumstances — open chambers doors — to make his ultimate personal pitch. However, Londer had invited Harry to come to his home that evening to meet his wife, since it might be the last time they would see one another. Harry had not committed, out of concern for doing something that would smell of impropriety and could come back to haunt us.

Earle and I discussed the matter in some detail. He explained the downsides of a visit — if it were ever found out it could raise the ugly specter of the decades of GO improprieties we were attempting to live down. “On balance,” Earle said, “this is up to the client. You need to brief the boss [Miscavige] and I’ll trust his instincts.” I called Miscavige and briefed him on all that had transpired. He said, “What is your hesitance? It’s a no brainer. Of course he sees Londer, and he does whatever he has to do to get the product.” I told Earle the verdict. Earle told me, “Okay, now it’s between me and Harry. I’m going to protect you and Dave. Leave it to me.”

Earle did report that Harry had gone to Londer’s home. He did not give particulars beyond saying that Londer was thrilled with the visit. He gave no guarantee of any particular outcome, “But,” Earle added, “tell Dave to relax.” And then Earle told me an anecdotal aphorism he would repeat several times to Dave and me over the next couple of years. He said, “Here is my only test of friendship. I know you are going to testify tomorrow in front a grand jury investigating me.

Do I sleep tonight…or don’t I?”

Even though Earle said he would sleep well that night, I did not. Of secondary importance was my own life. I was so thoroughly invested in the crusade to protect LRH and Scientology that the possible impact on them loomed larger than my own spiritual death — which would be a virtual certainty if we did not win. As I had learned by then on Hubbard’s lines of operation, there had to be a head on a pike after a catastrophe of this magnitude. And I had been around Miscavige long enough to know that regardless of his having micro-managed every move in the trial, down to strangling me the first time I attempted to counter him, it would not be Miscavige’s head on this particular pike.

The next morning, the Multnomah County Courthouse was surrounded by Scientologists. The hallways and wide stairways inside were packed with Scientologists, from the front door,
through the lobby, up to the third-floor courtroom of Judge Londer. Londer gave a touching soliloquy about how well the “real Scientologists” who had descended upon Portland had
conducted themselves. He said he might not have been so gracious and polite had his own religion been compared to botulism soup, as plaintiff’s counsel had done to the jury. He found
such conduct to be extremely prejudicial, and in violation of his own orders — having already determined that Scientology was a religion. The judge granted the mistrial motion, wiping out in one breath the $39,000,000 judgment.

After having survived a nuclear explosion by, among other things, successfully defrauding the court as to L. Ron Hubbard’s inaccessibility (Ron had been a named defendant, but we managed to get through the entire trial without the issue of his personal liability ever being adjudicated), Ron had two handwritten messages relayed to Miscavige. The first was a short note to the “real Scientologists,” the crusaders, commending them for having pulled off a feat of historical proportions by influencing the winning of the mistrial motion. The second consisted of two words and a single letter, sprawled across a full page in Ron’s signature style. It read, “Earle, congratulations! — R” The “R” stood for Ron, a signatory he had used for years on internal church dispatches.

Two months later, at our annual Sea Org Day celebration, Miscavige and I would be awarded special medals of honor, of a type never before issued by Ron. We had slipped on a banana peel and somehow managed to fall on a fur rug.

Notes