A case so different from all the others

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By HOWARD TROXLER

© St. Petersburg Times, published June 14, 2000

The distinction was important. To McCabe, the issue was never about the Church of Scientology as a religious institution.

It was about whether a corporation of the church had illegally abused a member named Lisa McPherson, and whether it practiced medicine on her without a license, in the days leading to her death in 1995.

The Church of Scientology now has two distinctions at the hands of Bernie McCabe.

The first is that he chose to prosecute the church (I mean, one of its corporations) in the first place.

The second distinction is that McCabe has dropped the case. There are not many former defendants walking around who get to say, "On second thought, Bernie McCabe let me go."

McCabe's office puts the blame for this turn of events on Medical Examiner Joan Wood. Wood changed her cause of McPherson's death from "undetermined" to "accidental" after the church provided her new evidence.

Not only did Wood change her mind, but according to the state, she was not especially convincing about when, how and why. McCabe's office says she would have been a lousy witness, and so the case was dropped.

I asked McCabe: Doesn't your office prosecute other cases where Joan Wood has ruled a death an "accident"?

"Yes, all the time," McCabe answered, giving the example of DUI-manslaughter cases. The death certificate says "accident." It is up to prosecutors to prove why a crime occurred.

But McPherson's case was much different, he explained.

"Number one, the practice-of-medicine charge was never going to fly on its own," McCabe said. "It needed to be there with something else. And the abuse case was predicated almost completely on the dehydration, leading to embolism, leading to death. If you can't establish that, there is nothing to support the abuse charge."

Why was the entire corporation charged in the first place, instead of the individuals involved?

"In order to find out what happened, because of the nature of the whole business, we ended up having to immunize anyone who knew anything," McCabe answered. "They had to be subpoenaed and compelled to testify. There were no individuals able to be charged."

Does he now regret filing the criminal charges against the corporation?

"No. I regret how it ended, but I don't regret having done it. At the time, I felt confident we were doing the right thing. ... If I were in the same position today, with the same information, I would do the same thing."

McCabe's office gave Wood's office a "satisfactory" rating in a recent evaluation. Would he say the same today?

"You hate to make a judgment based on what may be an isolated incident, under unique circumstances," he replied cautiously, finally concluding: "I don't have that form in front of me today."

In the end I could not fault anything the state attorney said. Yet this means some questions remain unanswered.

The judge will no longer have to decide whether Bernie McCabe's charges were a violation of religious freedom.

A jury will no longer have to decide whether the corporation as a whole, as opposed to the action of individual members, was guilty of any crime.

Only a civil lawsuit, filed in Hillsborough County on behalf of McPherson's estate, remains to be resolved. Maybe that's the right way to handle it.

I would have liked to have seen a clear vindication or conviction by a jury. But then, I had the luxury of having neither what the defense had at stake, nor the prosecutor's ethical obligation not to pursue a case I thought unproveable.

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