Tom Phillips, Mormon“Think,” and the Criminal “Case” Against President Thomas S. Monson, leader of the Church of Jesus Christ of Latter-day Saints, for “Fraud”: A Conversation at Mormon Dialogue & Discussion
By Ken K. Gourdin
Various corners of Cyberspace that are devoted to “things Mormon” from various perspectives have been set abuzz with commentary on the recent criminal complaint against President Thomas S. Monson of the Church of Jesus Christ of Latter-day Saints for alleged “fraud” in allegedly “coercing” tithing dollars from Church members by maintaining the truth of several tenets that are facially, obviously “false.” Disaffected British Mormon Tom Phillips has commenced a private prosecution against President Monson on that basis. Mormon Dialogue and Discussion is among those various corners of Cyber space.
Concerning the nature of the criminal complaint, another poster noted, “The [f]raud counts are for knowingly misleading by professing belief in a few key historical falsehoods in order to coerce tithing money.” And I replied, “Coerce. Ha-ha! That’s a good one.” Then later I added, “U.S. Courts just love hearing litigation regarding religious truth claims, and I’m sure the same can be said for their British counterparts! Bet the court can’t wait to hear this one!” Later, another poster remarked that there’s a rumor that similar charges are about to be laid against President Monson (and the Church of Jesus Christ of Latter-day Saints) in Germany and France, and I replied, “As I say, U.S. courts just loooove hearing litigation regarding religious truth claims. I’m sure that’s as true in Germany and France as it is anywhere else.”
The complaint, a PDF copy of which was posted in the thread, was addressed to “47 East temple Street” [sic]. Later, noting that it would not be out of the realm of possibility for a criminal defense attorney in the U.S. to attack (and attempt to quash) the summons for just such a technical defect, I inquired of a poster who is a solicitor [roughly equivalent to an attorney here; don’t ask me to explain the arcane distinctions between barristers and solicitors; I’m clueless!] who has practiced criminal defense in the U.K. for 25 years, whether U.K. lawyers and judges are as “petty and literalist” (my words) as their U.S. counterparts can be. Alas, she replied in the negative.
Another poster said, “Too bad there is no such thing as criminal idiocy.” I replied,
“If there were, this, no doubt, would be a First Degree, Aggravated, and/or maybe even a Capital Felony!”
Another poster, characterized those who initiated this criminal complaint essentially (though not in so many words; again, these are my words, not hers) as the helpless little complainants going up against the Big, Bad Corporation. She said, “I hope there can be compassion for Tom, Steve and Chris [apparently, she is close friends and/or on a first-name basis with all of these gentlemen] in all this and that the reaction to them is [C]hristlike. They are very little people going against a very large and well-funded corporation. I am concerned for them and their families.” I replied, “Oh, I know! I hear the Strengthening Church Members Committee, especially its paramilitary strike element, which is composed of jack-booted thugs who are clad in black from head to toe and carry military assault weapons, can be ruthless! Hope ‘Tom, Steve and Chris’ all have good bodyguards!”
Another poster quoted Tom Phillips as reported by The Salt Lake Tribune, who reported that he said, “‘If President Monson is acquitted, it will be a great surprise,’ Phillips said, ‘but probably because he has very good lawyers who tricked a jury.’” About that comment, she opined, “Just when you think they couldn’t possibly make it worse for themselves . . .” [ellipses in original]. I responded:
Ah, well. I wouldn’t expect any private citizen with the cojones [a Mexican reference to the male organ[s]] to bring a criminal prosecution in a jurisdiction where that’s possible to say anything less (especially since, if one is going to comment publicly at all, he hardly wants to hurt his chances by downplaying them), and I wouldn’t expect the Tribune to not quote him when he does (particularly not when the Defendant in the case is the leader of the Church of Jesus Christ of Latter-day Saints). Mr. Phillips’ accomplishment in the case brings to mind the old saying about a prosecutor being able to indict a ham sandwich (though I hasten to add that I’m certainly not comparing President Monson to a ham sandwich … except that each is roughly equally culpable of criminal wrongdoing [which is to say, not culpable in the least]).
Since, if I understand previous contributions to the thread discussing the legalities involved correctly, Phillips must prove that President Monson made knowing false statements, it will be interesting to see what evidence Phillips has of that element. (I suspect that, in both quantity and quality, Phillips’s evidence regarding President Monson’s alleged knowing falsity is about as good as Grant Palmer’s that the Apostles “know” the Church is false, but it took poor Dieter longer to catch on because he was an outsider).
As distasteful as this circus is likely to be on some levels, I hope I can be forgiven for having the same reaction to it that one has to a train wreck: not wanting to watch, but being too fascinated to look away. If nothing else, depending on how far the case is allowed to proceed, I think judges, lawyers, and legal observers in common law jurisdictions everywhere will glean valuable, “close second-hand” lessons about precisely why it is that courts are poor fora for adjudicating claimed grievances that arise out of religious truth claims. Even granting, for the sake of discussion, that the Church of Jesus Christ wronged Phillips, not every wrong (no matter how egregious the wrong claimed) has an adequate legal remedy. And surely the trier of fact who will be charged with deciding this case must know that even if Phillips has nearly unassailable evidence (which I highly doubt; how could he, and if he did, where could he possibly have gotten it?), it would set a very bad precedent (from both a policy and a legal standpoint) if that trier of fact were to find President Monson guilty of fraud.
Grant Palmer is a disaffected Mormon and author of the alleged exposé, An Insider’s View of Mormon Origins (personally, I’m always a little skeptical of the credibility of books whose appeals to authority [“I know what I’m talking about! I was an insider!”] begin in the title). He claims to have met with a member of one of the Church’s Quorums of Seventy (a member of the First Quorum, I believe) who told him that Church leaders at the highest levels all know it’s a fraud, but they keep the charade going for the benefit of the members. “Dieter” refers, of course, to President Dieter F. Uchtdorf of the First Presidency.
Another poster questioned how President Monson possibly could be found guilty of defrauding the complainants, since it’s very likely that President Monson has never had any personal dealings with them. I said:
I’m not, in any way, saying that this scenario is comparable to Phillips laying a criminal charge of fraud against President Monson, but . . . [Ellipses in original]. There is no shortage of cases in which company higher-ups are charged with fraud committed by underlings even though the victim of the fraud has no contact with the higher ups. To use an analogy, merely amputating an extremity won’t deal adequately with the criminal conduct charged: the head must be cut off.
Another poster, a former Mormon who’s now a member of an Evangelical faith, essentially accused President Monson of cowardice (though not in so many words) when he said (capitalization as in original but paragraphing altered):
Seems Thomas S. Monson has a real choice. He can — Speak BOLDLY and CLEARLY answering each of the 7 points [in the complaint] before the eyes of the WHOLE WORLD (owing to the attention so generously donated by the opposition) . . . OR . . . [he can] Lawyer up & hunker down.
Which do you think it will be? And what would Joseph Smith do?
Something about casting pearls before swine comes to mind. (And I say that as someone with some legal training.) I think one has to pick one’s battles, as well as the fora in which those battles are waged, carefully. (And if recognizing that fact makes me/President Monson/everyone in the Church of Jesus Christ of Latter-day Saints cobardes [cowards] in [this poster’s eyes and in] his like-minded fellows’ eyes, so be it.)
President Monson and those who have gone before him have testified boldly and powerfully of the truth of the Restored Gospel of Jesus Christ for nearly 200 years now. Those who have eyes to see, ears to hear, and hearts to feel will see, hear, and feel, even if President Monson doesn’t happen to have a Miracle on 34th Street moment in open court in an English court of law. He and his predecessors have testified – boldly, clearly, and unambiguously – concerning these things, repeatedly. But that testimony cannot move doubters who are determined to feed their voracious doubts ravenously while starving their dying faith. And even among the faithful, every General Conference, too often, we hear, “Yep! Same ol’, same ol’!” Like those miraculously fed, over and over, with manna in the wilderness, we, too, say, “Manna . . . again?!” Except in our case, it’s, “Huh? We had another General Conference, eh? Ho-hum! We’ve had enough milk! Where’s the beef?!!!”
Frankly, although I probably shouldn’t say this (fools rush in, and all that ;=)), though I could certainly be mistaken, and I hope I am), with due respect, [your] kind invitation strikes me as having been extended in the same spirit as that issued by the scribes and the chief priests in their pre-Crucifixion council: “Art thou the Christ?” they asked. “Tell us!” He responded, “If I tell you, you will not believe.” See Luke 22:67. If we can’t feel the still, small, voice, then even the mightiest winds, fires, and earthquakes will fail to move us (see 1 Kings 19:12). The world’s collective reaction when they hear these things too often is, “That’s it? Meh! The last video game I played or movie I watched was more impressive than that!” I think President Monson’s response to those hoping he’ll have [a] Miracle on 34th Street moment in open court should parallel the Savior’s response in Matthew 12:39.
Our UK lawyer friend replied:
A Court of Law is not a place for religious testimony. Witnesses (including defendants) are asked questions by prosecution and defence, in a specific order and in a specific way. [It’s] not a place to make any kind of statement, the rules are very strict. Others have tried to use Courts as a soapbox and found it just doesn’t work that way. We lawyers are sticklers and pedantic, especially when we want to be. … [ellipses in original].
Referencing her comment that lawyers can be “sticklers and pedantic,” I said, “You don’t say?!” She replied, “I know! Hard to believe isn’t it?” And my response was, “Very! You can tell I don’t know any lawyers!”
She posted a numbered list of observations about the case, the fourth of which was, “[There’s] nothing wrong in vigorously contesting false/frivolous allegations against you and using every means possible. I’d be out of a job if there were.” I quoted her list, then replied:
Heck, I’m one of the more pro-police, pro-prosecution people you’ll find anywhere, and I’ll even go so far as to say that the allegations need not even be facially false nor frivolous in order to justify vigorously contesting them! If a prosecutor’s gonna haul someone into court on criminal charges, I don’t care if the whole world thinks the accused is guilty as sin! It ain’t what ya know, it’s what you can prove, and if you’re gonna do that, you better have your ducks in a row!
When one poster questioned one of our UK solicitor friend’s assertions, another poster replied, “Not according to [her]. Do you have any reason to doubt her?” I replied, “C’mon! She’s a lawyer! What more reason do you need?!”
Another poster said, “They [the complainants] are trying to get the courts to require that the church train its missionaries to teach clearly everything that they claim is demonstrably false[.]” I replied, “I’m afraid nothing short of prefacing every principle taught with the disclaimer, ‘A lot of people, even many inside the Church, think that what we’re about to tell you is demonstrably false, but here goes …’ would satisfy the Mormon‘Think’ Crowd …”
The poster who essentially accused President Monson of cowardice then complained we were bombing him rhetorically—just throwing words at him (my expressions). I said, “Yeah, it’s not like words actually mean things or anything[.] We confess; you got us: we’re just throwing a buncha crap at you to see what sticks . . .”
Another poster asked about the costs of pursuing a private prosecution. I replied:
I don’t know about the English system or the costs involved there, but I’ve had people approach me with a legal problem or issue. Before I give them any advice (which I don’t/won’t do because I’m not licensed), I say, “Well, if you want to sue someone, the first thing you’ll have to do is pay a filing fee.”
And they say, “Wait. You’re telling me it costs money to sue somebody, even if I don’t hire an attorney?”
And I always say, “Yup.”
Usually, they end up concluding that whatever the problem is, it isn’t that bad. Amazing how that works!
The poster who essentially accused President Monson of cowardice said,
Thomas S. Monson certainly has a choice in his response. He could answer with boldness and clarity. He could do something else. Some might even call this choice an illustration of the man’s “free agency” – though I wouldn’t go that far. Regardless, his choice will say something about his character.
No, it won’t say anything about his “character.” [name redacted]. (Veiled insult noted! Thanks!) Not a thing. And the reason why it won’t say anything about his “character” is because, while using a court of law as a soapbox might make for appealing drama, it’s not possible in real life. As those “in-the-know” (one, in particular) have tried to explain to you, the rules of evidence and procedure will not allow what you’re suggesting.
Tell me: if President Thomas S. Monson were to take the course you’re suggesting, would that cause you suddenly to “see the light,” to renounce your current faith, and to embrace anew your former faith? Do you think it would have a similar effect on anyone else who’s in a situation similar to yours? If the answer to those questions is, “No,” then, as much as you might think them unfair for doing so, people have a right to indict you in exactly the same way you are attempting to indict President Monson. (Unless turnabout really isn’t fair play … !) You remind me of the guy who once boldly proclaimed to Elder Glenn L. Pace, “I would have died for Joseph Smith!” Whereupon Elder Pace asked, “Really? What are you doing for President Gordon B. Hinckley today?”
And even if President Monson were to (be allowed to) do what your suggesting, the disaffected would simply use it as more fodder to mount further attacks against the Church of Jesus Christ. (And, if you were honest with yourself and with us, it seems certain that you’d have to admit that that’s exactly what you want! Sorry to burst your bubble.)
This poster replied that I was attempting to take away President Monson’s moral agency, when, in reality, I was simply suggesting, as our UK lawyer friend had earlier, that a courtroom is no place for religious testimony. When another poster clarified that that is, indeed, my position, I wrote:
Not to mention that the moment President Monson rises to his feet and says, “Your Honor, at this time, I’d like to take this opportunity to bear my testimony …” opposing counsel will, in turn, rise to his feet and say, “Objection, Your Honor.” And His Honor then will say, “Sustained.”
Whereupon, if President Monson says something like, “Your Honor, with due respect, while you may attempt to silence me, God has directed me to come here to speak the truth,” His Honor then will say, “Mr. Monson, if you persist, you will be held in contempt [and/or charged with disrupting court operations].” Whereupon, if President Monson persists in [this poster’s] suggested (demanded?) course of action, His Honor then will say, “Officers, remove the Defendant.” And that will be that. And a few dozen papers the next day will have the page-one, above-the-fold, 72-point headline:
MORMON PRESIDENT CITED FOR CONTEMPT, HELD FOR MENTAL EVALUATION!
And millions of people worldwide, upon reading that headline and the accompanying account of the proceedings, will say, “Yep! I knew Mormons are nuts! This just proves it!” And [he] and his like-minded fellows will think it’s great!
The following exchange then took place. In response to my implying that President Monson in no way is a coward for asserting his legal rights, he replied, “The choices we make very much reveal our character, Kenngo. From the heart the mouth speaks—your Bible tells you that. And there’s no insult here at all, veiled or otherwise.” I said:
You’ve essentially called the man a coward without using the word. Since you didn’t actually use the word, I gave you the benefit of a minimal doubt by calling it a veiled insult. You can keep trying to pee on our legs and tell us it’s raining, if you like, but I’m not buying it.
He replied, “If he’s published anything that articulates his worldview [and] theology – I’m unaware. But even if he has [and] I didn’t like it – it doesn’t mean I’d go about insulting him personally.” I said, “Yeah. OK. Except you have. (Pee isn’t rain . . .)”
Referring to the other poster who clarified my position (that I was simply saying the court wouldn’t allow what he was suggesting rather than saying that President Monson lacks agency), I said:
As [the other poster] has pointed out so ably, I’m not suggesting President Monson lacks moral agency. He certainly could do what you have suggested (or at least, he could try to do so). As I’ve pointed out in another reply, though, if he did so, opposing counsel would immediately object, whereupon the judge would sustain the objection, would warn President Monson that he would be held in contempt if he continued, would have him carted off to jail if he did continue, and newspapers everywhere would have front-page, above-the-fold, 72-point headlines about the “Bat Crap Crazy” Mormon President the next day (and some headlines would use that exact phrase, except, perhaps, for substituting a stronger word for the second one).
That would serve no one’s purposes except yours and your like-minded fellows’ …
Another poster said, “The ex[-M]ormon critics will never be satisfied. [There are t]oo many historical interpretations to argue over. What interpretation does the church need to give to make them completely happy?” And I replied:
The one that paints past events, as well as the involvement of leaders of the Church of Jesus Christ of Latter-day Saints in those events, in the worst light possible. For example, “Brigham Young directly ordered the Mountain Meadows Massacre,” “Every President of the Church of Jesus Christ from Brigham Young through Joseph Fielding Smith was a racist,” and so on. Thanks for asking. You’re welcome. Glad I could clear that up for you! 😀
Another poster said, “No, the ex-Mormons don’t want to change the church, they just want the church to be honest. Once that happens, they will leave the church alone.” To which I replied:
ROFLMREO, ROFLMREO, ROFLMREO, ROFLMREO, ROFLMREO, ROFLMREO, ROFLMREO, ROFLMREO!!!!!!!!!!! [Rolling on the Floor, Laughing My Rear-End Off.]
Baloney! Sorry, [Screen name redacted], but you’ll never convince me that these peoples’ motives are in any way so noble or benign. You’ve drunk the Kool-Aid ™ if you believe that, Sister! If that were true, they would have lauded the recent updates to certain topics at LDS.org, would have expressed the hope that such updates will continue and pledged to watch further developments with interest, and would have left it at that. If they get any sort of admission from the Church of Jesus Christ or its leaders, that will be the blood in the water, and the rest of the sharks who feel as they do but who have been waiting on the sidelines for this thing to play out will move in for the kill!
She continued, “They want their family & friends to see what they have, without it looking like they read anti[-Mormon] false information.” I replied:
Oh, please! This isn’t just about what information people are willing to consider! It’s about the conclusions they’ve drawn from that information. There are plenty of people, on this site and elsewhere in the world of Mormon apologetics, who have researched that same information, yet have drawn diametrically different conclusions from it. Phillips and his ilk will never be satisfied unless and until the vast majority of people who “consider that information” have reached the same conclusions the Mormon”Think” [sic; I style the group thus to dispute the contention that one cannot be a thinking person and a devout member of the Church of Jesus Christ of Latter-day Saints at the same time] crowd has!
She continued, “They just want to be exonerated,” and I replied:
But President Monson, because he’s the head the Head of the Evil Empire, doesn’t deserve to be exonerated, is that it? ([Screen name redacted]: “Whoa! Wait! I never called the Church an Evil Empire!” No, you didn’t, but what you don’t realize is that most of the people to whom you’ve ascribed such benign and noble motives do see the Church exactly that way!) Again, you’re vastly underestimating their ultimate aim, [Screen name redacted]. And people who “just want to be exonerated” don’t usually file criminal complaints against others. They don’t use the criminal justice system to stage publicity stunts. The criminal justice system isn’t the proper place for airing grievances that are based on religious truth claims.
Don’t get me wrong: I think those who are taken in by information promulgated by critics of the Church of Jesus Christ of Latter-day Saints are misguided; I think they fall victim to presentism and to other fallacies; I think they’re too willing to judge others by standards to which they refuse to hold themselves; I think they don’t see other people and events as those people and events really are, but rather as they (that is, as those who are disaffected) are. But none of that means that I hold any ill will toward them, and I think the same can be said of the vast majority of faithful members and apologists of the Church of Jesus Christ of Latter-day Saints.
She continued, “They want their families [and] friend[s] back,” and I replied:
I can’t speak for anyone else, but it’s been my experience that when I lose the association of family and friends based on differing levels of belief in and commitment to the Church of Jesus Christ, it’s not because I’m unwilling to maintain the relationship. Are some people in the Church too judgmental? Yes. (Welcome to the human race.) But many people outside the Church are also too judgmental, and I’ve found that if I’m unwilling to believe as they do or unwilling to alter my lifestyle in ways that are inconsistent with what the Church teaches (although I’m not saying that the only reason for their disaffection is a desire to sin), that has more to do with our estrangement than anything else.
She continued, “They don’t want the superficial relationship that is based on “love the sinner” approach,” and I responded:
There’s nothing “superficial” about the “love the sinner” approach, [Screen name redacted]. If that were true, then all love would be superficial, because we’re all sinners. (Yes, I know some people are “holier than thou,” and yes, I know that’s a sin, too.) As a parent, do you approve of absolutely everything your children do? (I hope not!) But does that mean you love them any less? Again, I hope not! Why would you think God would be any different?
She continued, “Once they can do that, they don’t care what the church does, and I responded:
But the Church has clarified its stance on various issues of concern to the disaffected [by posting essays on various controversial aspects of the Church’s history, such as its history with African blacks and the Priesthood, polygyny, and so on] at . . . LDS.org, and yet the most militant of the disaffected still are not satisfied. The most militantly disaffected will never be satisfied until the Church of Jesus Christ as we know it ceases to exist!!!!!!!!!!!!!!!!! [I believe what I’m saying here pretty vehemently and fervently, if you can’t tell. Heh-heh!]
She continued, “When the church does that the wounds heal, the families are real, and Jesus can be put back in it,” and I responded:
Real life inflicts real wounds on all real people, all the time, [Screen name redacted], both people inside and outside the Church of Jesus Christ. Real families, both inside and outside the Church, have real problems all the time, [Screen name redacted]. The Church can’t take away the problems. It can only offer what it sees as the best way to deal with those problems. And wounds will never heal as long as the people who suffer them are determined to pick at scabs. And as for whether Jesus needs to be “put back into” the Church of Jesus Christ, I guess we’ll simply have to disagree about whether he ever left.
She concluded, “Because He [Christ] is on the side of truth,’ and I responded, “Yes, He is. I guess we’ll simply have to disagree about how we interpret that proposition as well. If you don’t think the truth can be found in the Church of Jesus Christ, no one can stop you from searching for it elsewhere.”
Another poster took me to task for my alleged mistreatment of this poster in the conversation just excerpted. He said:
You know Kenngo [part of my screen name], that really isn’t very nice to post. I know of many inactives who would never want to destroy the church but only want the truth to come out. If members still choose to believe in the church and attend, that is fine with them. I know that I was there for a few years before I came back and I never wanted destruction of the church.
No one can accurately paint the ex[-]Mormons with a broad brush any[ ] more than one can use that same brush to paint TBMs [“True-Blue” or “True-Believing Mormons”].
I responded to his defense of that poster against my alleged “attack” as follows:
I’m sorry I don’t work and play well enough with others for you [Screen name redacted]. I didn’t indict all of those who are less active or disaffected, as my full post makes clear. I did, however, indict Tom Phillips’ motives; the motives of others involved in this criminal complaint and potential prosecution (people really need to stop calling it a lawsuit [a mistake that, to be fair, I, myself made early on after hearing about it; I had difficulty believing that anyone would charge President Monson criminally] [preceding bracketed comment in original]); and I did indict the motives of many over at Mormon”Think.” And I did indict the naïveté of anyone who thinks that the motives of this crowd are in any way noble or benign. They’re not, and I refuse to say that they are.
Regarding the specific allegations of that poster that I had attacked my interlocutor in the foregoing lengthy exchange between us, I said:
If you think my response to [Screen name redacted] was an attack, then, with all due respect, you don’t understand it. I happen to like [her] on a personal level (or at least her Cyber-persona, since we’ve never met in real life). That said, while I’m more than willing to allow that [her] motives are noble, pure, and benign, the same cannot be said of the folks with whom she has cast her lot. And the naïveté of anyone who thinks otherwise (even if they don’t share the motives of Phillips, et al), with all due respect, deserves to be laughed at. If you want to dismiss my post to [her] because of its alleged “tone” (my word), that is your prerogative. But there is plenty of substance in it that I think you would be mistaken to dismiss so blithely.
Regarding any effort further to characterize my blunt, forthright, vehement response to this poster (someone of whom I believe it fairly can be said—although I do not bear her any ill will personally—that she is naïve) as an attack, I wrote:
I have been branded a bully for refusing to suffer wolves-who-attempt-to-disguise-their-true-motives-by-dressing-in-sheeps’-clothing gladly. (I should have expected as much.) I have a suggestion for all of those who wish to avoid being “bullied” by folks like me: if you’re going to ally yourselves with individuals or groups whose aims would fundamentally alter (at best) if not totally destroy (at worst) the Church of Jesus Christ of Latter-day Saints, you’d best make sure you fully understand the motives of those individuals or groups, and you’d best make absolutely sure that those putatively “noble and benign” motives are really as pure, as noble, and as benign as you think they are. [Bold in original.]
Fair or not, people are going to judge you by the company you keep, and even if your motives are purer, nobler, and more benign than those of the individuals or groups with which you ally, it’s difficult (if not impossible) to make that clear enough in the minds of those you think are mistaking your motives.
In response to another poster who suggested that Phillips had at least presented enough “evidence” to avoid having the “case” tossed out of court, I replied:
Unless I’m totally misunderstanding what has been said regarding UK criminal procedure, little [if any—in fact, as another poster clarified below, no] “evidence” has been presented to this point. While I’m fully mindful of those who have mentioned the differences between the US and the UK systems, respectively, perhaps this analogy is still valid: in the US, we have a saying that a prosecutor can indict a ham sandwich. Why do we say that? Because the minimal evidentiary showing that must occur to allow a criminal indictment to proceed to trial is vastly different (lower) than the evidentiary showing necessary to prove guilt beyond a reasonable doubt at trial. The only thing Phillips, et al, have done to this point is manage to indict a ham sandwich. All they’ve proven is that the case is procedurally sound: all of their “t’s” are crossed and all of their “i’s” are dotted, and they’ve used the right language and generally alleged the right things to manage to avoid having the complaint tossed out of court. But there’s a big difference between procedural soundness and evidentiary soundness beyond a reasonable doubt.
What about it? Am I wrong?
Our ever-helpful UK solicitor replied:
No, you’re correct, except that [it’s] not just evidentiary soundness beyond a reasonable doubt, which is the burden of proof at trial, that hasn’t been tested or examined but also whether there is a prima facie case [emphasis added by Kenngo1969] – or, in other words, a case to answer. Tom Phillips may think that his evidence has been approved of and I imagine the Judge and the Court adviser commented on it but its not part of the test for the issuing of the summons. So we can’t be sure why the Judge issued the summons except that it was procedurally sound. The Judge may have said that the evidence looked like it disclosed a fraud, but we don’t know what was told her or shown her (namely if it was in any way reliable evidence) and only a Court can determine if there is a case to answer – usually after the defence has tested the prosecution evidence by cross examination.
A prima facie case, broadly and generally speaking, is one that, absent rebuttal, is sufficient to prove the crime charged or to prove an allegation in a civil suit. I replied:
Wow. In order to bring a criminal prosecution, a private citizen doesn’t even have to show he has a prima facie case, but, rather, simply has to convince a judge that he’s met a few technical legal requirements?! It’s even easier to indict a ham sandwich in the UK than it is in the US?!!
Those, Ma’am, are scary thoughts!!
The saga continues. A hearing in the “case” against President Monson (such as it is) has been set for March 14. Private prosecution, such as that undertaken in this case, is a pre-1986 holdover from when the UK lacked public, professional prosecutors. In that year, the Crown Prosecution Service (CPS) was created, and that office has the authority to take over the case. Many legal observers who have commented on the case hope that’s exactly what happens, because the CPS has the authority to exercise its discretion by declining to prosecute. Hopefully, this case dies the swift, merciful death it deserves. If it does not, and if it is allowed to proceed (too close) to trial, as I have indicated above, it may well set bad legal and policy precedents. As I have also noted, courts are poor fora for adjudicating religious truth claims and most all disputes which arise therefrom. The poet noted that “the heart knows reasons that reason knows not of,” and devotion borne of religious faith and fervor is just such a matter.
For the best summary of the “case” from a believing perspective, as well as for helpful background on the case’s genesis as a private prosecution, see this link from attorney (albeit a Yank!) Steve Densley, last accessed today: http://blog.fairmormon.org/2014/02/17/a-yankee-lawyers-guide-to-the-mormon-apocalypse/.
Update, March 23, 2014: “Case Dismissed!” – The case now has been allowed to die the swift, painless death it deserves. The judge concluded, as I have been saying for weeks (though this isn’t exactly how he put it; these are my words, not his, but he might as well have – he should have – used them), “Courts are poor fora for adjudicating religious truth claims and disputes arising therefrom.”
Undaunted, Phillips and company have vowed to fight on, proclaiming victory even after suffering this defeat. A statement released by Mormon“Think” had the following to say about the prospect of Phillips continuing his crusade: “The announcement [of the dismissal of the case] came almost a week after a daylong hearing in which Tom Phillips’ attorneys forcefully demonstrated the LDS Church’s complicity with a range of illicit acts contained in Fraud Act 2006.” At Mormon Dialogue & Discussion, I said:
“…forcefully demonstrated”? Oh, please! If you demonstrated (proved) it, pray tell, why did the judge throw your case out?!!! These folks seem positively delusional! They may have forcefully argued that the Church of Jesus Christ was complicit in fraud, but they didn’t demonstrate any such thing! (And it’s been my [albeit limited] experience that, generally, the weaker an attorney’s case is, the more forcefully it is argued!) Thus, I have no doubt that Phillips’ attorneys argued his case very, very forcefully!