I’m not an attorney and I could not record the hearing, so please forgive me if I make mistakes in relating what I remember of the oral argument hearing for Jane Doe (i.e., Candace Conti) versus the Watchtower Bible & Tract Society on January 14, 2015 and the length of this post.
I arrived at the Civic Center/Union Plaza in San Francisco, CA about 7:30. The area is very nice with a few homeless people sleeping in the park across from the courthouse. It took me about 10 minutes to find the clerk’s office for the court on the first floor, which opened at 8:00.
Once the clerk’s office opened, the two clerks who I talked with were very polite and helpful. The arguments for Jane Doe (i.e., Candace Conti) versus the Watchtower Bible & Tract Society were scheduled 5th out of (I think) 8. While I was in the office a cameraman and another person for NBC arrived asking about the hearing for Candace Conti’s case.
The courtroom for the 1st Appellate Court is on the 4th floor and takes up most of that floor. Before entering the courtroom all electronic devices needed to be given to the California Highway Patrol officers (CHP) and then visitors go through an additional metal detector before entering the court. The courtroom was very nice with seating for over 100 people and a beautiful painted mural of Mount Whitney viewed from near Highway 395 in the Lone Pine Area of California.
Arguments were supposed to start at 9:00, but were slightly delayed because Justice Martin J. Jenkins was delayed due to a transit problem with the BART mass transit system. Justice Jenkins arrived after the 1st arguments were heard.
During all the oral arguments the presiding justice was very strict about allowing 15 minutes (in total) for the appellants’ attorney(s) to present arguments, 15 minutes for the respondents’ attorney(s), and then 5 minutes for rebuttal by the appellants’ attorney(s). It was up to individual attorneys not to exceed the total time allocation for each side. IMHO this format favors appellants over respondents and forces attorneys to focus on the 2 or three most important arguments only.
During the 1st four arguments for other appeals, the various justices asked a few insightful questions of the attorneys with their body language projecting thoughtful review and a familiarity with the issues and arguments being presented by the attorneys.
Associate Justices Stuart R. Pollak (presiding justice), Peter J. Siggins, and Martin J. Jenkins heard the oral arguments for Candace Conti’s case starting at approximately 10:55. Jon R. Williams argued for the appellate (i.e., the WTBTS) first for about 10 minutes and James M. McCabe argued for the Freemont Congregation second for the remaining 5 minutes of the allocated 15 minutes. Rick Simons argued for the respondent (Candace Conti) for 15 minutes with Kelly I. Kraetsch sitting next to him. After Rick Simons’ submittal, Jon Williams rebutted for a few minutes and then James McCabe for a couple of minutes.
From what I could remember and read from my scribbling notes, Jon Williams was a well-dressed lawyer who was unfazed by questions from the justices, had a plan to appeal the judgment, and executed his plan. Heck even his suit didn’t show wrinkles! Jon Williams made the following points:
- Separate punitive damages from criminal actions. The elders and Watchtower did not sexual abuse Candace.
- The Watchtower does not have a “special relationship” with the local congregation and is not responsible for how the elders conducted themselves.
- The 1989 BOE letter was a key defense that protects the Watchtower.
- The newly introduced nonfeasance theory (i.e., failure to act when action is required) by Richard Simons was not supported by evidence.
James McCabe was a kindly looking man in a wrinkled suit. James McCabe played the religious beliefs cards and stated that:
- JWs are just practicing their religious beliefs – not that JWs are pressured and indoctrinated to participate in FS and may be marked for not participating.
- There was no testimony or evidence that the elders specifically paired Jonathan Kendrick with Candace Conti. Putting Kendrick in the same group as the Conti family does not count.
- Candace Conti’s parents should have been responsible for protecting Candace from Kendrick. [My retort] Why didn’t the elders warn Candace’s parents about Kendrick, especially when the Watchtower and elders indoctrinate all JWs that “JWs are the kindest, most moral, most trustworthy, honest people in the world??!!
- Kendrick did not sexually abuse Candace while in FS but afterwards.
Based on their body language all of the justices were very interested in what attorneys for both appellants said. I almost thought that the justices knew that something was wrong with what the attorneys were saying but couldn’t put their fingers on it. Just like I knew something was wrong with the Watchtower’s propaganda and how JWs behave, but didn’t know how to prove it to myself until I read Steven Hassan’s book “Combating Cult Mind Control”.
I liked the actions of and questions from Justice Jenkins before and during the arguments. He left the courtroom and returned with an arm-load of papers weighing about 30 lbs before the arguments. He asked a question of attorney McCabe about the elder’s actions/inaction using an analogy about talking about a problem in a tent when the problem was with a camel that was outside the tent.
I really felt that the justices would affirm the judgment against the Watchtower until I heard the questions that the justices asked Richard Simons and his responses.
I don’t really remember much about what Richard Simons said. When the justices asked him questions, I did feel that he was like a fighter against the ropes and on the back of his heals. If he had a plan, his plan did not account for possible questions from the justices. The four most important things that I remember were:
- Simons said that the trial judge’s instructions to the jury about “protecting” Candace should by inference include warning Candace and her parents about Kendricks’ previous abuse.
- Simons said that it was obvious that the Watchtower was responsible for the actions of the congregation elders. [My retort] The WTBTS is very careful so it would be very difficult to show a significant amount of documentation during the trail to demonstrate a “Special Relationship”.
- Simons did not emphasize that the 1989 BOE letter that he introduce during the trail was a smoking gun about the special relationship between the Watchtower and the elders. [My retort] Why would the WTBTS write that letter in the first place, unless there was a reason to be afraid of liability and wanted to reduce it?
- When Justice Siggins asked attorney Simons about why the jury assigned the congregation 13% liability and the Watchtower 27% in the judgment, Simons responded that it was probably because the jury felt that there were inconsistencies with testimonies from Watchtower representatives. [My retort] Lucky break for Candace that the justice gave Simons a chance to address how WTBTS’s representatives behave.
Hopefully, the justices will agree with the trial judge’s instructions to the jury and trust the jury’s decision about the WTBTS’s liability being twice that of the congregation.
After the appeal was submitted approximately 30 people left the courtroom including Candace and Kathleen Conti; attorneys Irwin Zalkin, Alexander Zalkin, and Devin Storey; and Trey Bundy, an NBC investigative reporter. Candace Conti and Richard Simons went to complete interviews with the media.
I overheard Irwin Zalkin and Trey Bundy console Kathleen Conti to not to be concerned about the questions that the justices asked Richard Simons.
While waiting to retrieve my cell phone and laptop, I talked with Devin Storey for a couple of minutes. Devin Storey said that he learned a lot from listening to the hearing and was anxious about returning to his office in San Diego, CA.
After the hearing I went to the nearby Museum of Asian Art, had lunch there, called Barbara Anderson to let her know what I saw and heard, and then toured the Museum. I would really recommend seeing paintings by Tetsuya Ishida in the museum and on line.
After observing the oral argument hearing, IMHO future civil sexual abuse lawsuits against the Watchtower will need to either show an overwhelming amount of evidence that the Watchtower does have a “special relationship” over local congregations for juries (and appellate judges), and/or subpoena GB members. If GB members are subpoenaed, hopefully the Watchtower would ignore a court order or the GB member would behave like Freddy Franz did in a Scottish courtroom. Since the Watchtower is very careful about what it writes, the following information would probably need to be introduced as evidence:
- Time slip records of JWs to demonstrate how much control the WTBTS has over JWs,
- Emphasize that the WTBTS pressures elders to practice the “Two-Witness” Rule, contact the legal department before calling local police, and that JWs are indoctrinated not to bring reproach on the WTBTS. The Constitution guarantees that government is not allowed to infringe on an individual’s beliefs but can regulate an individual’s actions.
- Testimony from JWs/ex-JWs in a congregation about how they are influenced by Watchtower propaganda,
- Pertinent Watchtower and Awake! articles about shunning, going in FS, blindly following instructions by the GB and elders, that JWs are the most honest and trustworthy people in the world, etc.
- Testimony from experts about undue influence, BITE control, mind manipulation techniques, and affects of using thought-stopping platitudes.
- Any documentation from the WTBTS like the 1989 BOE letter that demonstrates how the WTBTS controls local congregations.
Peace be with you and everyone, who you love,
Robert