State takes middle road against Scientology
By THOMAS C. TOBIN
© St. Petersburg Times, published November 23, 1998
LEARWATER -- Bob Heyman remembers the mood in early 1997 at the Pinellas-Pasco State Attorney's office when prosecutors were hearing about a young, mentally distraught woman who had died in the Church of Scientology's care.
"I think there was a sense that this was a senseless death," said Heyman, whose boss, State Attorney Bernie McCabe, was only beginning to examine the case of Lisa McPherson. Heyman, now in private practice, was preparing to end a 15-year career as a prosecutor.
"This was just terrible," he said. "This woman never should have died."
Almost a year would pass before Clearwater police and the Florida Department of Law Enforcement would complete their investigation and give McCabe their opinion that a crime had been committed. It would take McCabe another 11 months to decide whether charges were warranted and, if so, which charges.
Among McCabe's options: Be aggressive and level a serious charge such as manslaughter, but risk a bruising legal battle with the Church of Scientology, which had taken on much bigger fish than McCabe.
Only four years earlier, the well-heeled organization had subdued the IRS after a 40-year legal war, at times spending $1-million a month on lawyers.
Another route would have been to decline to charge or level a minor charge, which might have exposed McCabe to accusations that he lacked toughness.
He eventually chose a third option, say Heyman and other lawyers who know the state attorney and are familiar with the workings of his office. McCabe took what they described as an eminently safe and practical middle course that resulted in two felony charges against the Church of Scientology's main operating entity in Clearwater.
The Church of Scientology Flag Service Organization Inc. was charged with abuse and/or neglect of a disabled adult and practicing medicine without a license.
Though serious, the lawyers said, the charges carry less emotion than manslaughter and less of a stigma for Scientology than if church members faced individual charges that could put them in prison. Because the Scientology entity was charged corporately, no single person faces prosecution or punishment.
"They probably determined that this is the charge that can be best proved, most easily proved, as opposed to manslaughter," said Michael Cheek, a veteran criminal defense lawyer in Clearwater.
"I think Bernie realized that the church, in all probability, was going to fight vociferously if a church member was charged," said criminal defense lawyer Denis DeVlaming, a law school classmate of McCabe's. "With a high-profile defendant, he wants to make sure," DeVlaming said. "He wants to have not only a prosecutable case, but a winner. ... He wants to have it nailed."
Said Heyman: "My first reaction was, I think they charted a middle ground."
Scientology and its attorneys have expressed a sense of satisfaction with McCabe's decision, though they have not said how they will respond legally.
McCabe has not commented since the charges were filed Nov. 13.
If convicted, Scientology could be fined $15,000, which would not stretch its budget. When applying to the IRS for tax-exempt status early in this decade, Scientology reported annual revenues of more than $70-million from its Clearwater operations alone.
The fine in Lisa McPherson's death would be one-tenth the size of the church's average annual laundry bill in Clearwater, based on IRS records.
McPherson died after a 17-day stay at Scientology's Fort Harrison Hotel in Clearwater, where church staffers kept her under guard as part of a Scientology procedure to stem her psychotic behavior. She was 36.
According to Scientology's records, the staffers medicated her and tried to feed her, often by force. They also kept her under guard.
When McPherson became seriously ill, they delayed nearly four hours, then took her to a hospital 45 minutes away in Pasco County so she could see a Scientologist doctor. Morton Plant hospital was two minutes away from the Fort Harrison.
The church is accused of an "inexcusable delay" in getting McPherson to a hospital and of subjecting McPherson without her consent to questionable care by unlicensed attendants.
Had individual Scientologists been charged instead of the church, "You would have had to batten down for the long haul," Heyman said.
To prove manslaughter, prosecutors would have had to prove that Scientology or its members committed culpable negligence. That means proving they "must have known or reasonably should have known" their actions were "likely to cause death or great bodily injury," according to the jury instruction for manslaughter.
The prosecutor also would have to prove that any violations were "gross and flagrant."
While Scientology's own records of McPherson's experience chronicle a grim existence at the Fort Harrison, they also paint a picture of church members trying to help her. If a jury were to accept the latter portrayal, a manslaughter charge could be harder to prove, the lawyers acknowledged.
Also, a manslaughter defense likely would include the argument that Scientologists were simply practicing their religious beliefs in trying to help McPherson, Heyman said.
He said the religion defense is tricky territory for prosecutors because of legal precedents set by Christian Scientists, who often are confused with Scientologists and who have successfully fought in court for the right to choose divine healing over medical science in times of sickness.
Claiming religious beliefs as a motivation can cause juries to have reasonable doubt about charges, Heyman said. "It's hard for a jury to put that out of their mind."
Cheek said McCabe's office probably chose the abuse and/or neglect charge because it fits the facts in the case better than manslaughter. Under state law, prosecutors must prove that a "caregiver" who has assumed responsibility for a disabled adult must take "reasonable measures" to protect the person.
In using the charge, McCabe will not be required to prove the church caused McPherson's death -- only that it seriously injured her.
The prosecutor thus avoids what was expected to be a sophisticated and highly scientific defense in which Scientology would have tried to prove McPherson's death was a health-related accident that happened to occur while she was in their company.
Church officials assembled a team of nationally known pathologists to buttress their contention McPherson died from a blood clot in her lung that originated in a leg bruise she suffered in an auto accident just before she entered the Fort Harrison.
Cheek, DeVlaming and Heyman all speculated the church is preparing to plead no contest to the charges and pay the fine.
They said they based that assessment on Scientology's low-key reaction to the charges, its stated desire to settle the matter quickly and the legal reality that pleading no contest will make the outcome of the criminal case inadmissible in the wrongful death lawsuit filed by McPherson's family in Tampa.
"They don't sound like people who are going to go to battle over this issue," Heyman said.
In addition to the fine, the church also could be made to pay for the costs of McPherson's burial and the city and state investigation.
Clearwater police this week will be tabulating the costs of their two-year investigation, "which I suspect will be substantial," police spokesman Wayne Shelor said.
Cheek and other lawyers said a no contest plea would not absolve the church. By law, he said, Scientology would have to agree in writing that McCabe's office has so much evidence the case would not be dismissed.
"That's very important," Cheek said. "You don't admit guilt, but you have to agree there is merit to the case."