R.K. v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, et al - 252

R.K. v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, et al Doc. 252 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 1 of 77 1 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON IN SEATTLE -----------------------------------------------------------ROBERT KELLY, ) ) Plaintiff, ) ) v. ) ) THE CORPORATION OF THE PRESIDENT ) OF THE CHURCH OF JESUS CHRIST ) OF LATTER-DAY SAINTS ) ) Defendant. ) ) No. C 04-2338RSM -----------------------------------------------------------11 CLOSING ARGUMENTS 12 13 14 BEFORE THE HONORABLE RICARDO S. MARTINEZ 15 16 October 10, 2006 17 18 19 20 21 22 23 24 25 For the Defendant: APPEARANCES: For the Plaintiff: Michael T. Pfau Tim Kosnoff and Michael Rosenberger Attorneys at Law Charles Gordon and Jeffrey Tilden Attorneys at Law ------------------------------------------------------------ Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Dockets.Justia.com Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 2 of 77 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. PFAU: Ladies and gentlemen. Thank you, your Honor. Counsel. Where were you when Jack Kennedy was shot and assassinated? It is a phrase that has almost become a For those of us or you that were not cliche in our society. born in 1963 or were too young to remember that date, I think 9/11 serves the same analogy. Why is that important One of the or what relevance does it have to this case? fundamental issues in this case is when was Bobby Kelly sexually abused by Jack Loholt. The strongest testimony is from Dorothy Kelly. And when asked, both on direct examination and cross-examination, why it is that she, without question, believes that it was the summer of 1972, amongst all the other things she could remember, she said because it was traumatic. She said two things, for a variety of reason I am going to go into. Primarily she said, you remember She said, I remember it was in things surrounding trauma. the summer of '72, and importantly I remember after talking with Dr. Allenbach that he was gone in a matter of months. How many months she wasn't sure, but of these issues she was sure. Ladies and gentlemen, I submit to you that all the competent and most relevant testimony in this case Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 3 of 77 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 established conclusively that Robert Kelly was sexually abused in the summer of 1972. If you look at the exhibit in front of you, her belief or her reflection that it was '72 is also based on facts. Very importantly, she said that she recalls her daughter -- she recalls it was the summer of '72s because her daughter was divorced in 1971 and moved back to Washington from California. Another, I won't call it a tragedy, but something that would help someone remember when. And she remembered it was in the spring of that year that her daughter who had been staying with her after she left her husband, after she moved back from California, left to buy her own home which she shared with her daughter -her daughter's daughter in Black Diamond. And she recalls she wasn't in the home, the Kelly family home in Kent, because after Bobby -- after Loholt masturbated in front of the boys in the field she was concerned. And a number of And she was the relatives came back for a family meeting. asked about that specifically by both lawyers for both sides. And she said, I am certain it was after she moved out because she came back to the home, wasn't living there. That is one piece of evidence in a string of evidence, ladies and gentlemen. She recalls Bobby Kelly developing serious behavioral problems in the fifth grade. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 4 of 77 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Again, a very important fact. Bobby Kelly doesn't remember exactly when he developed these problems but his mom does. pie in the sky. And it is not There was an event that followed the And he was transferred from public to And he was transferred from Counsel behavioral problems. private school. A major event. public to private school not because of his grades. pointed out, well, geez, there is not that much difference in his grades, he had Ds, Cs and Bs throughout. change. It was his behavioral problems. And remember the testimony, ladies and gentlemen. You heard snippets of what those behavioral That didn't problems were that caused the concern that led to a transfer to a private school, Saint James Catholic School, which they thought would be more disciplined for their son. And these weren't little things, ladies and gentlemen. There was testimony that Robert Kelly in the fifth grade, which would have been after the summer of 1972, plugged up the toilets, turned on the water and flooded the school. There was testimony that he stood up and he punched There was testimony that the tiles and he broke the tiles. he became more violent and he was involved in fights. As an aside -I am deviating from my outline It has to do here but I don't want to forget about this. with Dr. Wise's testimony that all personalities are formed Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 5 of 77 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 within the first three to five years, and therefore it is unlikely that the child would be affected by the rape. Jimmy Allenbach was also transferred to Saint James because of behavioral problems. they were one year apart. He is one year -- What is the likelihood that both these kids developed behavioral problems at or around the fifth grade and are transferred to Saint James? in mind, ladies and gentlemen. Keep that Both kids were abused together, were transferred because of behavioral problems. That is not the only testimony. The testimony in the depositions, and was repeated at trial, from Dorothy Kelly, he was approximately nine years old when the abuse occurred. Looking back over the course of 30 years, mom testified that he was approximately nine years old. Robert Kelly testified in deposition, and he reported that he was nine to twelve years old. period. Interestingly, nine years old places Robert Kelly, in part, in the summer of 1972. I don't think it is Same time that important, because I think when you are talking about approximate ages, nine, ten, etcetera -- those were approximate ages. But the facts that allow witnesses to place people and events in a time frame are very important. But he was nine years old in the summer of 1972. Why is it the summer -- or summer or fall -- Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 6 of 77 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 All of the testimony establishes that it was warm whether, ladies and gentlemen. Remember, Loholt lured the children into the apartment with root beer and firecrackers. Summertime activities, summertime things. You will recall that when Dorothy Kelly and her husband went to speak with Dr. Allenbach he was lying in bed with a broken leg. He had broken his leg playing baseball, a summer or fall activity in this state. Dorothy Kelly testified that Loholt moved out within months of her complaining to Dr. Allenbach about the abuse. This makes sense, ladies and gentlemen. He moved out in January of 1973. If the complaint took place in the summer or the fall, Bobby Kelly is approximately nine years old, nine or ten, he is between the fourth and fifth grade, it is in the summer, and Loholt is asked to leave and does move within months. Now the term "months" has been used to describe the duration of the abuse. No one here -I think But there is Mr. Gordon in opening said it was two months. no testimony it was two months. I think Rochelle testified -- Rochelle testified that Bobby told her it was six to eight months. have been four months. There has been testimony that it might That is reasonable. You are talking about looking back over time and trying to figure out when something happened. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 7 of 77 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The medical records indicate that Robert Kelly was nine years old. So what's left of the argument that it was before the summer of 1972, despite all that proof from the witnesses? Very very little. At one point Robert Kelly told a counselor that it was age six. He went in, he wasn't dealing with these It is a single issues, and he told him it was age six. reference contradicted by a second reference in counseling. And it is not even possible because Loholt wasn't living there at age six. Ladies and gentlemen, all of the credible evidence suggests it is 1972; it is the summer of 1972. You are instructed on the burden of proof. The burden is on behalf of the plaintiff to prove these facts to you, to prove the case to you. Remember this isn't a criminal case. beyond a reasonable doubt. It is not Our burden of proof doesn't suggest it has to be 1972 and there could be no possible reasonable doubt. All we have to prove is that it is more probably true than not that it happened in the summer of 1972. I think that is a critical fact. I think the other critical fact or cluster or constellation of facts in this case has to do with Bishop Borland's testimony, ladies and gentlemen. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 8 of 77 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Before we talk about Bishop Borland's testimony, which is fascinating when you look at the facts that surround it, I want you to look at a clip of then Richard Pettit, eventually Bishop Pettit's testimony about -MR. TILDEN: Your Honor, we would object to a The evidence has already in. replay of the evidence. (At this time the jury entered the courtroom.) MR. PFAU: No different, your Honor, than showing a page of the deposition. MR. TILDEN: THE COURT: I agree with that. I agree with that as well. The objection will be sustained. MR. PFAU: hope you recall. Let me summarize what he said. And I Do you remember, first of all, Bishop Borland said, and his testimony changed as he went on, he said the dad was distraught, Pettit was distraught when he came to him. Pettit testified -Richard Pettit's I felt testimony was, I was shocked at what my son told me. sorry for my son because of what he told me. Bishop because I wanted concrete action. bishop to do something about Loholt. It is against that backdrop, ladies and gentlemen, that Bishop Borland comes to you and he testifies -Exhibit 2? Why don't we turn to Exhibit 3 -- or Recall this testimony. I went to the I wanted the Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 9 of 77 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 dad. Before we do that, step back. heard from the son, Scott Pettit. Remember, we also And Scott Pettit came. what did Scott Pettit testify about what happened? Scott He Pettit testified that he slept over at the Allenbachs'. was a friend. He was older, 15, 16. He slept over. He was a friend of Brent Allenbach. During the night Loholt came into his sleeping bag and repeatedly tried to grab at his penis and his testicles. He fought him off and he rolled He fought him off and It went on all over, and Loholt was back again. rolled over, and Loholt was back again. night. He was sexually assaulted, ladies and gentlemen. He went to his dad. He testified he went to his The testimony was that he was crying and he was upset. Enter Bishop Borland. And recall there were We know actually very few surprises. We take depositions. what witnesses are going to say. the perspective of our case. This was a surprise from Not an unpleasant surprise because the testimony, ladies and gentlemen, is so unbelievable as to be preposterous. What he said is that he had a son and a father come to him, and he said it was a special meeting. asked a lot of questions. And I And maybe it didn't seem like But there was. I there was a rhyme or reason to them. asked Bishop Borland whether it was a special meeting or just something in the congregation. Did you catch him at Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 10 of 77 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the congregation to talk to him? No. He said it was a special meeting set up because dad, Richard Pettit, wanted to talk to him. And then he said -I asked the question, what did he talk to you about. inadvertent touching. Well, there was some And then, ladies and gentlemen, the target begins to move. What do you mean by inadvertent touching? No, no, no, of course not, just horsing Of a sexual nature? around like we used to do. Ladies and gentlemen, have you ever seen a child spin a tale? changes. It starts with an iota of truth and it I And it changes subtilely with each question. submit that is what was happening. Okay. that mean? It was inadvertent touching. What does Well, I'm not exactly sure what that means. He said he had lost confidence in his Well what did he say. scout master. So one student loses confidence in a scout master because of some horsing around and he is removed? was removed as the only assistant scout master in this troop. And this becomes more incredible with each question He that is asked. He was removed because there was some inadvertent touching? And he said, yeah, he was worried, he had lost confidence, was worried about getting his Eagle Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 11 of 77 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Scout. Ladies and gentlemen, that is unbelievable testimony. MR. TILDEN: Your Honor, that is a comment on credibility and we would object. THE COURT: argument. MR. PFAU: the scout master? Bishop Borland. with Ken Keller? Ken Keller. Next, well, did you tell Ken Keller, And remember the questions I asked of I said, Bishop Borland, were you friends Yes, I was. I was personal friends with The objection is overruled. This is Bishop Borland, what is the responsibility of The bishop oversees the bishop vis-a-vis scouting? scouting. So he has now testified, that although dad was distraught, although the child was there, although the child was crying, although the child has testified that he was sexually assaulted, that wasn't mentioned at this meeting that was set up specially; and that he released the scout master because one scout in an entire troop had lost confidence in him because he was horsing around, and then I never told the scout master. Imagine that, ladies and gentlemen. 30, 40 kids. Imagine 20, You have a scout master, you have an assistant scout master, and one day the scout master doesn't show up? And no one has any questions? Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 12 of 77 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 But remember Ken Keller's testimony. to weave these things together. What did he say? You have He said, no one talked to me about it, and it was none of my business. Think about that, ladies and gentlemen. there is a big big issue it may not be part of your business. say? It may be confidential. And what else did he If I didn't -- He connected the not talking to the What were It begs bishop. He has lost his assistant scout master. they doing on hikes, at merit badges, at meetings. the question. And then he said, yeah, Jack Loholt stopped coming to church for a while. time period. I didn't see him during that And he was going through some sort of church discipline, some sort of disciplinary action. Ladies and gentlemen, one plus one equals two. Bishop Borland removed Scott -- removed Loholt from scouting because he had sexually assaulted a child. report of that sexual assault. And what you are seeing here, ladies and gentlemen, is none other than full blown clergy cover up years after it happened. All the facts point to it. There is And there was a Vicki, can you turn to Exhibit 4? more, ladies and gentlemen. Bishop Borland testified that he removed Loholt within a week or so of this complaint, Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 13 of 77 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 immediately. He gets a complaint of inadvertent touching or horsing around that doesn't have anything to do with sexuality, but I remove him. suppose that was true. Rather draconian actions. But I think they didn't think we would look and check the details. Look at the entry on February 6th -call out the entry for February 6th, 1972. released as the scout master. I will Jack Loholt is Assume we accept that he was released as scout master because one scout lost confidence in him for horsing around. the decon's quorum advisor. The same day he was released as We spent a lot of time on The decon's definitions, because definitions are important. quorum advisor was the youth pastor to the 12 to 14 year olds. Scott Pettit is 15. If he is truly being removed from scouting, if you can believe that, because of one scout losing confidence in him because he was horsing around, why is he being removed as the Deacon's Quorum advisor? youth pastor to the 12 to 14 year olds. Ladies and gentlemen, he is being removed from these positions because he is a danger to children. They In essence, the knew it and they were trying to do what they could to take band-aid or immediate action. And then what does he do later that month? you would look at 2/23. He is reinstated on the scout If Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 14 of 77 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 committee. Do you remember the questions, ladies and gentlemen, about the scout committee? Bishop Borland went It is It to great lengths to talk about the scout committee. not hands on. is distant. etcetera. It doesn't have anything to do with kids. They don't go on hikes, etcetera, etcetera, What they did in the span of a week or so of receiving this complaint was remove him from all his callings dealing with children and put him in a position where he was still active but not dealing with children. Why? Because he is a danger to children. Ladies and gentlemen, why would Bishop Borland come in here? First of all, the circumstances under -I don't know if this was clear or not. In the deposition they took the position that that communication was confidential. You can't ask about that conversation. Lo and behold by the Waive time we get to trial they waive the confidentiality. is a fancy legal term for it is no longer confidence anymore. If this was so innocuous, if this was such a small event, and it was simply removing a scout master, why was it confidential? Why did you waive it? Why did he tell this story when he came into court? For two reasons, ladies and gentlemen. One Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 15 of 77 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 primarily, he is a mandatory reporter under the law. In 1971, as clergy, Bishop Borland had a mandatory duty to report. Not may but shall. If he suspected child abuse he There had a mandatory duty to call the police or call CPS. is no getting around it in this case. So he tells you, oh, it must have been -despite all the facts that we just set forth, it was something else, it was inadvertent touching, but we removed him from all youth activities, etcetera, etcetera. and gentlemen, it doesn't even pass the smell test. The question also becomes of Bishop Borland -Well, let me change gears here. Suppose, ladies and Suppose you And that Ladies gentlemen, you are not as cynical as I am. accept Bishop Borland's testimony at face value. is okay. It is hard, for example, to believe that police It is hard to believe that There is a reason it is officers beat people in prison. doctors commit medical malpractice. hard to believe that. Because in society we have to trust You tend to trust clergy. these people to do what's right. Let's assume, for argument sake, that Mr. Pfau is a cynic, I'm not, maybe I believe this story. Here is the beauty of this from our perspective, ladies and gentlemen. If Bishop Borland is testifying about what really happened he was grossly negligent in how he reacted to what were serious, serious red flags. A dad who was Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 16 of 77 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 distraught, a child is talking about being touched in some fashion. Borland. This is in a light most favorable to Bishop No follow up investigation. Nothing. Why don't No further questioning. What could Bishop Borland have done? we turn to Tab 5? There a lot of things he could have done. He And there are a lot of things he should have done. should have called the police. He should have called CPS. He could have called his stake president. Remember his testimony about that? got on the phone to call my superior. my superior. I could have I am trained to call He could have alerted the Boy Scout Council. He could talked to Ken Keller about the reasons he was removing Loholt. He could have alerted the congregation. He could have alerted He could have alerted the parents. Dr. Allenbach. In the winter of 1971 and the early months of 1972 he could have conducted a thorough investigation. Part of plaintiff's theory of the case is that he failed to warn and he failed to investigate. to report per his requirements, but he failed to investigate. There was no investigation. He failed He could have sent Loholt for sexual deviancy treatment. He could have, importantly, identified other He could have asked Scott Brent Allenbach victims, ladies and gentlemen. Pettit some questions, who was with you. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 17 of 77 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and Terry Clark. That takes him right to 152nd Street. And he would have realized Loholt, if he didn't know it already, was living with a Mormon family with a lot of kids that was in rural Kent right next to a house owned by a Catholic family with a lot of kids. All of these things would have resulted in Jack Loholt either being sent away for treatment, removed from children, removed from the congregation, removed from the Allenbach's house, monitored, investigated, reprimanded, all of it, ladies and gentlemen. Remember the testimony about, if I would have known I would have taken a brick hammer to Loholt. was saying to you is, I could have done something. in my power. What he It was It was my power as bishop to effectuate what I needed to do to protect kids, including Robert Kelly. This brings us to the plaintiff's claims. they are threefold, ladies and gentlemen. get instructions. And You are going to And in these instructions it will talk But there are about the plaintiff's case, the defenses. three theories, three claims, and three ways in which the church was negligent. First and foremost, in 1971 clergy were mandatory reporters. They had a duty to go to the police. They had a duty to get the They had a duty to go to CPS. ball rolling. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 18 of 77 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Now, interesting, despite this claim of confidentiality, Bishop Borland went to Loholt. Remember He the testimony about confidentiality is not absolute. went to Loholt. According to Ken Keller Loholt was involved He could have gone to the in some church discipline. police. Had he gone to the police an investigation would have ensued, they would have gotten involved, they would have done what is proper, interview the family members, interview Scott Pettit. I assessed Scott Pettit's credibility. very credible. to him. He was He would have told the police what happened There was And it was not inadvertent touching. nothing about his testimony to suggest it was horsing around. That is theory number one. If you find for plaintiff on theory number one, you have found the church negligent, and you will be instructed to award the plaintiff damages. Theory number two, failure to investigate, failure to warn. These are the things that the bishop could have done because of his power within the ward, because of his responsibilities and because of his duties. list I just went through. The laundry Had he done those things, ladies and gentlemen, change would have been effected, Robert Kelly would not have been sexually abused. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 19 of 77 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 teacher. The final theory of the case, which is interesting, is that Herman Allenbach was an agent of the church. And you will be instructed on that. And I will It is talk more about that later. interesting. But Herman Allenbach -- 30 years later the church very much wants to The facts speak Herman distance themselves from Herman Allenbach. for themselves. Herman Allenbach was a high priest. Allenbach, more importantly, was the priest quorum advisory. Not for a couple of years. There are admitted facts he was the priest quorum advisor from approximately 1969 to 1974. During the entire period giving rise to these facts he was the youth pastor. Counsel suggests that he was a Sunday school It doesn't matter under an agency analysis. The testimony has been from every It was more than that. Mormon witness that Boy Scouts, the Priest and Deacon's Quorum, the meetings on Sunday, and the Young Men's Mutual Association are interwoven. Ken Keller talked about that. Herman Allenbach was the person at this ward in charge of youth between the ages of 14 and 16 during the entire relevant period. He was their agent. Loholt was the youth pastor involved with children between the ages of 12 to 14. Bishop Borland over saw them both, and could do what he needed to do. When Herman Allenbach learned twice, one when Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 20 of 77 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 his son testified, and you heard Jimmy Allenbach's testimony, I told my dad about Loholt, and my sister, when I was in the bathtub. It is a red flag, Dr. Allenbach. It is a red flag that something is wrong with Loholt. Fast forward to the summer of 1972. A neighbor comes and says Loholt is masturbating in front of the kids. It is a red flag, Dr. Allenbach. And Dr. Allenbach, although I anticipate the defense is going to suggest this, can't take his agency hat on and off. For this reason, whether or not the abuse or the events giving rise to notice take place on church property, he learned about them. And when he goes back as the agent of the church, and as the youth pastor, he knows that his fellow youth pastor is a danger to children. He acted too slowly. He didn't remove Loholt from his premise until the late winter of 1972 or January of 1973. imputed onto the church. gentlemen. Those theories of the case, you don't have to find all three, one, two or three add up to a verdict in the plaintiff's favor. The evidence is overwhelming that Bishop It is And that liability is They controlled him, ladies and Borland and Dr. Allenbach were negligent. overwhelming based on the story that was concocted here in court, and what he didn't do and could have done, even if you accept his facts. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 21 of 77 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I want to turn your attention now -- I want to move from the liability case to the damage case. mean by that is -And what I I Why don't we turn to Tab 7, Vicki? You have seen in this want to talk about Robert Kelly. trial, and we didn't attempt to shield it in any way, shape or form, Robert Kelly, the good, the bad and the ugly. There is good, there is bad and there is ugly. to go into this. I am going But he is the plaintiff, and the evidence that he is damaged, and profoundly damaged, is uncontroverted. Dr. Wise and Dr. Conte, I am going to talk about their testimony and I am going to compare the two of them momentarily. They may disagree on what caused Robert's damages but they agree completely on what his damages are. If you take a look at the slide in front of you, it summarizes some of Dr. Conte, Dr. Wise and what I will call the lay fact witnesses, the girlfriends' and the ex-wife's testimony. I don't think anything sums up Robert Kelly better than Dr. Conte's testimony that this is a stunted adolescent. He acts like an adolescent. He does things like an adolescent. He makes decisions like an adolescent. Emotionally he is And it is also borne out by the testing. a 12 year old. With regard to understanding his damages, he is like a 12 year old. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 22 of 77 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 damage. Mr. Hide. Ladies and gentlemen, he is a 44 year old man living at his mother's house. He has always lived at his mother's house, but for a short period of time when he was married. Is that the be all and end all? what do you think of that? No. Dr. Wise, Did No, I I I think it is pretty odd. you follow up whether it was clinically significant? didn't ask that question. only had an hour or two. I didn't have enough time. What does he do when he is engaged in conflict? He goes back home, ladies and gentlemen. Let's talk about some of the other damages that is borne out. Dr. Conte says he is hiding out. It is uncontroverted. He has anger management problems. Jovine Umali described him as a Dr. Jekyll and She says he is a nice guy, I liked him. And just like that his temper explodes and he is unreasonable and he is irrational. Rachelle Cope talked about the same thing. talked about the uncontrollable anger. management therapy. He was in anger He She You have seen some of the records. was evaluated because of his anger in a bitter, bitter custody battle over the right to see his son. That segues into another profound area of Robert Kelly can't sustain a meaningful Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 23 of 77 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 relationship. Lots of people have relationships broken off. But he has a Not everyone marries everyone that they date. history. Dr. Wise testified to it, Dr. Conte testified to it, the ex-girlfriends and the ex-spouse testified to it, of not being able to exist in a relationship. he gets jealous, there are intimacy issues. What are the intimacy issues? Rachelle Cope. from Ms. Umali. You heard from You heard He gets angry, She was the blond haired woman. And they phrased it differently, but they were talking about the same thing, ladies and gentlemen. Physically he can't be intimate. away. Emotionally he pushes Rachelle Cope talked about physically not being Ms. Umali was a little more up front. She said intimate. during the relationship he couldn't achieve an erection. Let's think about that. That was a relationship Robert was in the early to mid '90s, ten years ago. healthy. He was in his thirties. He was a ski instructor. He was a tennis coach. problems. There is no history of any organic He was involved in what appeared to be a He committed -- with a committed and beautiful woman. couldn't achieve an erection. I will talk about some of the defenses. But one of the defenses I think is, well, geez, this guy is damaged because his dad yelled at him, spanked him, and he was hit by a golf club once. Does anybody really think his Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 24 of 77 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 inability to have a sexual relationship is based on his dad yelling at him on occasion and spanking him? the effect is obvious, ladies and gentlemen. There are work failures. the work failures. There are successes. gets good grades. Ms. Umali? looking. things. Robert Kelly is smart. Remember He was good He Dr. Wise talked with The cause and His resume looks wonderful. I thought he was the total package. He came from a good family. We liked the same But when you peel away We had the same interests. the surface there is a damaged individual. The same holds true for work. Dr. Wise talked about the work, talked about the problems with the work. And it happens when he is faced with interpersonal relationships. He doesn't get along with bosses. He doesn't get along with teachers. students. He has problems with the He suffers from depression and anxiety. Dr. Wise talked about chronic low grade depression. talked about anxiety. He He has been hospitalized, according to Dr. Wise, who reviewed the records, for anxiety attacks. He has been on medication for anxiety. Now, the doctors that support this, they are not talking in terms of formal diagnosis. Dr. Conte even said, diagnosis and symptoms are not the best way to figure out Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 25 of 77 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 what is wrong with this gentleman. But think about that, ladies and gentlemen. Think about what we have talked about. Relationships, work, family, hiding out, inability to sustain a job or relationship. contented life. support. This is the fabric which makes a happy and These are the things we rely on for These are the things we rely on for self-esteem. Without these things we can't move forward in a positive way. Does that mean, ladies and gentlemen, that everything about Robert Kelly is bad? that. There is a danger in There is a danger in opening up your lives, for jurors seeing bad things, seeing unpleasant things, seeing things that maybe you are not happy about. There is also -is one of Robert's resumes. Why don't we turn to 11? This It details some of the things Quinalt Native he has done over the past five years. American Tribe, historical research and artifact preservation. Political consultant campaign manager for the Auburn Citizens for Schools campaign in the school district. Metropolitan Development Council, program director. Administrator of the Enhanced Mentoring Program, a program designed for disadvantaged, at risk Native American students. United Way of King County, Seattle, Washington, Professional Development Positional 1999 to 2000. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 26 of 77 26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Responsibilities. Appointed by the Metropolitan King County Council as a committee member to the Regional Governance Council to analyze, review and decide the incorporation of a municipality. Central Del Le Raza, mentoring and tutoring Central Area Youth Association, at risk minority children. mentoring and tutoring at risk minority children. Legislative analysis, King County Council, initiated professional internship. I give you this, ladies and gentlemen, because the human psyche, the human spirit, they are complex. Unlike Dr. Wise, who testified about it being rocket science, it is not. There are good things about Robert. talked about the good things. things. Rachel Jovine talked about the good She is obviously a Consider that You heard from Julie Ellis. very very angry woman. She hates Robert. when you consider her testimony. But the themes are all the same. somebody that tries hard. This is This is somebody that looks good on the surface, but this is someone who is profoundly, profoundly damaged. I want to talk about Dr. Wise and Dr. Conte. Those are the experts. Who is Dr. Conte? Dr. Conte opines on a more probably than not basis that Robert Kelly has been damaged and has been damaged significantly because of the Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 27 of 77 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 childhood sexual abuse he endured. He has testified that that is based on his observations, his testing and the literature. Dr. Conte, we are fortunate in this state to have one of the foremost experts and researchers in the United States at the University of Washington. His CV or his resume, to the extent it is of interest to you, will be provided. It has been made an exhibit. Look at it. Look at the research. this field. the issues. Look at the decades of work he has done in Consider his grasp of Consider his testimony. Consider his expertise. And he said, without question, the damages that Robert suffered are due in part to the childhood sexual abuse he suffered. Contrast Dr. Wise. deposed him. He is a nice guy. I like Dr. Wise. He is an expert. I have Is he an expert in traumatic brain injury cases, and he is an expert in involuntary commitments. sexual abuse. Recall the first question he had. asked him, how many times was Robert abused. going like this. He couldn't answer it. Mr. Tilden And he was He is not an expert in child He testifies three to four times a week. fact. He didn't even know that fundamental And I asked him questions about his testimony. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 28 of 77 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And you remember he kept talking about the literature, the literature, the literature. Tell us. Right here. Dr. Wise, what literature? He fumbled around and he Dr. Wise, what I said, He Right here. pulled it out. I knew what he was doing. 1991. year is that study? Dr. Wise -- It was 15 years old. I questioned him about the deposition. admitted that when prior to having to prepare for trial, when he pulled out one study, I asked him what studies, what literature, what research do you base your opinion on, Doctor? And he said, I can't think of any. I can't think of any. Give me an author, Doctor. blank. I am drawing a He Give me a year, Doctor. I can't think of any. admitted that what he does -- he occasionally testifies in a case involving child sexual abuse. By contrast, Dr. Conte has evaluated 5000 victims of child sexual abuse. He gets on line and researches some literature. It is important because you have to consider his testimony substantively. What did he say? He basically said that he And he made a doesn't think the abuse had any effect. statement that I found incredible. He said that victims of rape, they get over it or the symptoms dissipate in six months to a year. That is amazing testimony. It is He absolutely unsupported. That people get over trauma -- Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 29 of 77 29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 went into testimony about the brain secreting certain chemicals. How does that explain combat trauma? How does that explain depression following family loss that goes on for years? How does that explain rape victims that are It doesn't. He is not scared to go outside for a lifetime? competent in this field. His testimony should be given very very very little credibility. He said that the human personality is formed between the ages of three to five. And therefore that is a reason -- or he implied that is a reason that Robert Kelly was not affected by the multiple rapes he endured in the summer of 1972. testimony. What he was talking about is something I think we all know. Human beings are wired differently. Some Ladies and gentlemen, that is incredible human beings are more resilient than others, more resilient to stress, but it is not a cause and effect analysis. However, Dr. Wise had to agree with me on a number of things. And, Vicki, why don't you turn to Tab 12? Ladies and gentlemen, this is very important on what the cause of Robert Kelly's damages are. childhood sexual abuse? Was he affected by the Both experts agree that there are If the sexual abuse risk factors for negative outcome. involves certain things, certain facts, the literature suggests that they are at risk for a more negative outcome. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 30 of 77 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 abuse. The experts testified that it is highly variable, there is no explanation as to why one person is abused badly and another person is fondled, and the person who is fondled has problems. It has to do with the complexity of the human psyche. But the literature and the experts agree there are certain risk factors. these risk factors. And I walked Dr. Wise through And he had to agree with me, every single one applied to Robert. And I will walk you through them. I am not a practitioner. Male on male I don't know this, but the literature suggests that when an adult male sexually abuses a boy the outcome is worse than when an adult male sexually abuses a girl or an adult female sexually abuses a girl. don't know why. Both experts have testified that the This was male on male abuse. I literature supports that. Very important. Threats of violence, threats of force. When a child is abused and there are threats involved it tends to be a more negative, long-term outcome than when the child is manipulated or the child is touched or the child is raped without force. This is important, because Robert Kelly testified that while he can't remember the exact sequence of occurrences, they escalated in seriousness and nature. he described crying during the later events. And He described Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 31 of 77 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 gagging. mouth. He described graphically Loholt's penis in his And he described, at the last event, Loholt saying, if you tell anyone I am going to kill you. Ladies and gentlemen, this is textbook. textbook for a poor and a negative outcome. The force involved. Robert Kelly, I anticipate It is you will probably hear something along the lines, well, it was only four or five events. Ladies and gentlemen, this isn't four or five events of inadvertent touching or touching the boy over the clothes. Robert Kelly set aside the masturbation incident, set aside being fondled the first time down in the room. four occasions. He was orally sodomized on three to He was forcibly raped. One of the risk factors for negative income, and a significant one, is whether there is force in penetration. Make no bones about it, ladies and gentlemen, Robert Kelly was raped multiple times in the summer of 1972. He testified that Loholt ejaculated in his mouth and on his face. It was a completed sex act. No professional intervention. Robert Kelly, but for some anger management counseling, has never seen a counselor. abuse. He is an untreated victim of childhood sexual Both Dr. Wise and Dr. Conte testified that he is in need of counseling, and he is in need of counseling because he was abused. Very very important. And I spent a lot of Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 32 of 77 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 time on it. Another risk factor is the age at which the child was abused. developmental age. Robert Kelly was abused at a critical He was abused at age nine or age ten. This is different than And it is And the experts talked about this. being abused when you are four or five or six. different, in part, because you are going to remember it, you are going to be able to process some of it, you are not a toddler, you are an early adolescent. who is beginning to understand sexuality. This is somebody If it occurred in the summer of 1972 he would have been between the fourth and fifth grade at that time. It is different when a boy is abused between the ages of 9 and 12 than when he is abused between the ages of 12 and 18. And Dr. Wise or Dr. Conte, I can't remember who, A ten year old doesn't have the ability to Scott explained this. process what happened to him, a 15 year old does. Pettit had the ability to process what was happening to him. And he went to his dad. not. A ten year old developmentally does And it is supported in the literature, ladies and If you are abused at age ten your risk for gentlemen. negative outcome is worse than it is if you are 15, and it is worse than it is when you are five. abused during that time period. He was abused with other victims. There were And Robert Kelly was Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 33 of 77 33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 multiple instances of abuse. And then finally at the bottom, this is critical, whether the victim comes from a functional or a dysfunctional family -Very very important in general, but important in this case when you consider the defense of this matter. I asked both experts, who have reviewed all the records, who have interviewed Robert and who have testified -- or tested Robert, whether there was an abusive home. Even Dr. Wise, their own expert, said no. There is no evidence that this was an abusive home. When considering whether the abuse caused Robert Kelly's problems, despite what Dr. Conte says, one of the leading experts, despite what the literature says about risk factors -about it. after. Apply common sense, ladies and gentlemen. He had never been sexually abused before or He ends up with Think Yet he ends up with anger problems. relationship problems. He ends up with intimacy problems. He He ends up with an inability to achieve an erection. ends up with problems with his children. He had never been physically abused before or after but for one occasion. occasion, the golf club. Remember, this was one I And I don't mean to demean it. don't mean to underplay it. But I do need to remind you of kind of what happened during the course of the trial. I don't know if you are familiar with subliminal Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 34 of 77 34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 advertising. That is when Coca-cola or Budweiser, or somebody in the Super Bowl, they want to show you a Coke or a Budweiser as many times as they can. front of you. Budweiser. The defense did a little of that every single chance they could, the single incident in a lifetime of the family, in a lifetime of good, bad, ups and downs, was flashed before you probably ten times. subliminal advertising. by a golf club. Consider the facts. The facts are that Robert The There It is like They flash it in And their hope is you buy Coke or you buy He is hit by a golf club, he is hit testified that he believes his family is supportive. facts are that he had some tension with his father. is no question about it. him. The facts are his dad yelled at The facts are in the late 1960s or early 1970s he was spanked, spanked with a belt. I am not suggesting those are good things. it in context, ladies and gentlemen. Put Are they going to lead to the problems that he has, problems with authority, problems with women, problems in the workplace? However, one of the risk factors to consider is whether the family was dysfunctional. doesn't support it. I think the evidence Jovine Umali said she loved the family, But if that family was she stayed there for a few months. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 35 of 77 35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 disfunctional, if Robert was affected by his father's yelling, if Robert was affected by the golf club, if Robert was affected by the alcoholism, which was never supported factually, you take the victim as you find them. maxim of law in our state, in our country. And if the plaintiff came from a dysfunctional family that is one of the factors that leads to a worse outcome when someone is sexually abused. I don't think the That is a evidence is there, but if that is the case, ladies and gentlemen, it is going to affect his outcome. THE COURT: Counsel, you have seven minutes. I don't know if you want to save any for rebuttal. MR. PFAU: I do, your Honor. Ultimately, ladies and gentlemen, you are going to have to decide how much money to award Robert Kelly. We told you at the beginning of the case that we were going to be asking for a substantial sum. We think the facts support that. The rape alone If We are talking about a life. supports a substantial verdict against the defendant. you take away all the damages, and just look at what happened to that fourth grade kid, it is supports a substantial sum. What is a substantial sum? guess. 2 million? 3 million? I can't hazard to 5 million? I am not 4 million? Maybe that is too high, maybe that is too low. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 36 of 77 36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 going to provide you with a range other than that, other than I suggest you consider what happened to Robert Kelly, and you consider the lifetime of effects and how it permeates literally every piece of his life. I will save the remainder for rebuttal, your Honor. THE COURT: Thank you, Counsel. All right. Ladies and gentlemen, please now give your kind attention to Mr. Tilden for his closing on behalf of the defendant. MR. TILDEN: Good afternoon, ladies and gentlemen. On behalf of Chuck Gordon and Mike Rosenberger, my partners, and Randy Borland, it has been our privilege to represent the Mormon Church in this case. I would like to perhaps shed less heat on this debate and more light. 35 years ago some really really offensive things happened to Robert Kelly. Mr. Kelly. We are sorry they happened to And we are sorry that happens to any child But no Mormon official was involved anywhere in the world. in the action. And when you analyze the law that the Judge has given you, you will conclude we are not legally responsible for what has happened. If you forget the law for a moment, and just use your common sense, we believe you will come to the same conclusion. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 37 of 77 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 This is especially the case where this lawsuit is brought, as it has been, 35 years after the events in question. It is especially the case where, as he is doing, Mr. Kelly is suing the Allenbach estate right now for this same harm. It is especially the case where his own parents who actually did know about the abuse at the time did nothing. Mr. Pfau has just told you they want millions of dollars from my client, despite the fact that this did not happen on church property, at a church outing, a church event, and despite the fact that Jack Loholt and Robert Kelly were not brought together by anything we did. were neighbors. He has told you they want millions of dollars despite the fact that we first met Mr. Kelly in March of 2005. The basic question that you all have to answer here is when a church is responsible or whether a church is responsible for the acts of any given member. On that front, remember that Hitler at least professed to be a churchgoer up until his last days. robbers go to church. the church? Bank They When the banks get robbed do they sue Do Lots of people in car wrecks go to church. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 38 of 77 38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the victims sue the church? No. We will address why not when we look at the instructions Judge Martinez has given you. This is not a case about theology. For our purposes here the Mormon Church could be any kind of defendant. Puget Power. We could be the Boeing Company or Paccar or We could be the University of Washington, We could be the City of Kent, King We could be the Kiwanis Pacific Lutheran. County, the State of Washington. Club or PTA or Girl Scouts. The plaintiff argues two things in this attack on us. And I would like to address them each in turn. The first, Dr. Allenbach was our agent. The plaintiff talked about that some but they did not show you the instruction. Turn, if you would, to Instruction Number 18. "In this case, during the relevant time period, defendant --" that is us "-- admits that Bishop Borland was acting within the scope of authority. However, if you determine that Dr. Allenbach was an agent of defendant, one of the issues for you to also decide is whether Dr. Allenbach was acting within the scope of authority." Instruction Number 17 actually talks about whether you are an agent. about scope of authority. The second paragraph of 18 talks "An agent is acting within the scope of authority if the agent is performing duties that Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 39 of 77 39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were expressly or impliedly assigned to the agent by the principal or that were expressly or impliedly required by the contract of employment. Likewise, an agent is acting within the scope of authority if the agent is engaged in the furtherance of the principal's interests." Was Dr. Allenbach our agent for these purposes? Was he acting within the scope of his authority? Allenbach out of it for a minute. already know. Mrs. Kelly told us her husband worked at Boeing. She didn't tell us what her husband did at Boeing, or if she did I forgot. Let's assume for a moment he works at Boeing He is Leave Let's talk about what you and he is an engineer or works at one of the plants. driving to Boeing, going to work, from Boeing going home. He is in a car wreck. Is Boeing responsible? No. It is not within the scope of his authority. Assume on the other hand that Mr. Kelly was a Boeing truck driver and is driving a Boeing truck when he is in a car wreck. Is Boeing responsible? Yes, if it happens within the scope of his authority. "An agent is acting within the scope of authority if the agent is engaged in furtherance of principal's interests." In theory you might argue, well, you know, by driving to work in the morning, that is in furtherance of Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 40 of 77 40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Boeing's interest because you need to get to work. But Boeing doesn't tell people how to come to work in the morning. Right? They tell you you need to be there at 7:00 It makes no difference to or whatever time your shift is. them whether you ride the bus, take the train or walk. So with that background let's take a look at Herman Allenbach. What do we know about Herman Allenbach? We know he was a small time We know he was an oral surgeon. real estate developer. We know he lived out in rural Kent. He was a Sunday school We know he was active in the church. teacher, as a protestant would call it, and his wife led the choir. We know he was not a member of the Mormon clergy. Was he an agent of the Mormon Church for any purpose at all? If he was an agent of the Mormon Church for He was a any purpose at all, what was he assigned to do? Sunday school teacher for older children. Does that make No, him a 24-hour a day, seven days a week agent of ours? it doesn't. How do you know that? Because Judge Martinez has told you what the law is. Mr. Kelly is not a Boeing agent driving to work or from work. Bank robbers who work at Boeing aren't Boeing That is the answer to the agents when they rob the bank. Herman Allenbach question there. Was he a bishop? throughout the trial. There was a flavor of this How do we know? No, he wasn't. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 41 of 77 41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Jimmy Allenbach, his son, testified, I never saw my dad up there where the bishop sits. But we know a better way. Admitted fact number 10 tells you that Herman Allenbach was never a bishop. High priest, like any observant male over 45. How do you know that? school teacher. When his son Jimmy came to him and said at the age of about eight, Mr. Loholt molested my sister and I in the bathtub, did Jimmy come to him in his capacity as a Sunday school teacher of older boys? his father. The events at issue here had nothing do with Herman Allenbach's relationship with the church. They had No. He came to him as Admitted fact number 8. And a Sunday to do with the fact that Jack Loholt was a tenant of his, who lived in the basement, and he was a next door neighbor of the Kellys. testimony. Can we have Exhibit 19, Page 32? seen this chart before. did it? A neighbor. You all have Who The best evidence of that is Mr. Kelly's own Don't bother blowing it up. What happened? It is not exactly clear to me what the word is there, but either neighbor or neighbor's friend. No discussion of the church. Blow up the part at Turn to Exhibit 20, Page 2. the bottom, if you would. The client asks that his own Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 42 of 77 42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 sexual abuse with an adult neighbor at age six that lasted for several months not be released to others. neighbor. He is a It The Kellys' neighbor could have been anyone. could have been a Paccar employee, a UW employee, King County, State of Washington, the Girl Scouts or a lawyer, judge, a court reporter or bailiff. Where was the church? away. The church was four miles You heard a lot in opening about the Allenbach You didn't hear anything about it in closing. It was a We compound. showed you a picture of the Allenbach compound. rural area. They pushed the envelope again trying describe Dr. Allenbach's cabin at Lake Kachess as a boy scout camp. It was a cabin. Leave aside for a moment whether Dr. Allenbach was an agent or not, and if he was an agent what the scope of the agency was. There is one other issue that relates The order in which the directly to this attack on us. events happened. Remember, the Kelly boys and the Allenbach boys go to Mrs. Kelly, she waits for her husband, they then come over to the Allenbach home that night. The argument is if Allenbach had done something the abuse -- further abuse wouldn't have occurred. What's the testimony on that? Robert Kelly told Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 43 of 77 43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 us when he met with his parents that night at the dinner table he said for several months there is a lot that, you know, that has happened in the downstairs apartment with Jack. Not only was the masturbation in the field not the first event, it may have been the last. We have no reason to believe that there is any sexual misconduct after Allenbach was informed. it, at a minimum -None. We know the vast majority of There is a lot that you know happened We know almost all in the downstairs apartment with Jack. of it, at a minimum, happened before Dr. Allenbach heard. I would like to turn to the Bishop Borland argument, their second suggestion that we are responsible for what happened to Mr. Kelly. Could we have Instruction Number 21, please. The Washington statute enacted in 1971 provided -It goes on to tell you what the statute provided, and the things that are required. What would we say? First, Bishop Borland heard about the Pettit complaint in February of 1972. The instruction doesn't tell you how recent the But it was relatively brand new. statute was at the time. It could have been a month or two old -MR. PFAU: THE COURT: MR. TILDEN: Objection, your Honor. Relevance. The objection is sustained. Second, what did Bishop Borland say. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 44 of 77 44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 He said, it is an article of my religion that the Pettit communication was privileged, privileged like a priest, I couldn't talk about it. Violation of the statute is not Turn to negligence, it is evidence of negligence. Instruction Number 20 in your book. 20 says just that. Some statutes are just -- it would seem self-evident negligent to violate. Don't go over 35 miles an hour. What is running through Bishop Borland's head when he hears this communication? this church. disclose it. I am a clergy member of I cannot This communication is sacred. I am like a priest. That is what Bishop Borland is thinking. those circumstances? Is it negligent not to report under No, it is not. The statute doesn't compel you to report, or at least it doesn't compel a finding of negligence. You have And to weigh what was going on in Bishop Borland's head. Bishop Borland knew that he was -MR. PFAU: speculation. THE COURT: is argument. MR. TILDEN: The objection will be overruled. I will object, your Honor. This is It Bishop Borland knew he was clergy and he knew that this communication was confidential. There is a large debate in the case what Bishop Borland was told. And I think Mr. Pfau pushed too far on Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 45 of 77 45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that. The first question is what happened to Scott Pettit. Did Scott Pettit testify that he was repeatedly assaulted, that it went on all night, touching his penis and testicles? My recollection of Pettit's testimony is that it was obvious that Loholt's hand was trying to get somewhere. I have no recollection of whether he actually made contact. Pettit rolled over in the sleeping bag. over again, but then it was over. He may have rolled I am not defending the And conduct in any way, but it did not go on all night. when Scott Pettit woke up he wondered whether it really happened. He then went to his parents. His dad, quite concerned, took that problem to Bishop Borland in confidence. He told Bishop Borland there Bishop Borland came in has been inappropriate touching. hear and he told you inadvertent, uncomfortable -uncomfortable horse play. recollection. They are awfully critical of that They are awfully critical. Mr. Pettit is 75 now. If How long ago was 1972? He was 40 then. Bishop Pettit (sic) was 33 at the time. you were waiting for the Microsoft stock offering, the IPO, you would have 15 more years to wait. century ago. It was a third after To personalize I had Those Bonanza, Laugh In were on TV. it, I had no children, no wife, no job, no degree. never kissed a girl and I had no driver's license. last two may have been related. It was a third of a century Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 46 of 77 46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ago. And they come in and criticize and old man's recollection from around the time of Watergate? Ten years after the events in issue here, but a quarter of a century ago Pope John Paul II was the subject of an assassination attempt. That seems like the distant past. 18 years ago I was married. to my wife. I recall proposing And there was a time when the 30 seconds of proposal and acceptance I could play like a movie in my head. MR. PFAU: is argument. THE COURT: MR. TILDEN: Overruled. There was a time when I could play Maybe 18 Objection, your Honor. I understand it the movie in my head over and over again, 30 seconds. it was 20. I don't know. But I could remember it all. years later I can only remember brief snippets, like a painting that has been torn up, I only have a few pieces left. In 18 more years when a third of a century has They come in passed, all I will know is that she said yes. here and they are critical of a third of a century old recollection. What is Bishop Borland certain of? certain that Scott felt uncomfortable. He is He is certain he took immediate action to get rid of the scout master. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 47 of 77 47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 told? Mr. Pfau says, wouldn't that be highly unusual if you are a boy scout? Well, they got a new scout master It is on the chart. assistant the same day, Lloyd Berry. If you are a kid you know your assistant scout master has been replaced. He took it as seriously as he thought. What are we are sure Bishop Borland was not No one suggests that Bishop Borland was told about There is not even a hint oral sex, ejaculation or semen. that Bishop Borland was told about the masturbation in the field. Bishop Borland knew far less than the Kelly parents, and he knew far less than the Allenbach neighbors. Part and parcel of the Bishop Borland argument is the issue of when did this happen. example. I loved the JFK I was in third I was not in I was not in I was in third I remember exactly where I was. grade and my teacher came in in hysterics. second grade. fifth grade. grade. I was not in fourth grade. And I was not in first grade. And I am absolutely positive I was in third grade. I believe that the events here would make an extraordinary impression on Robert Kelly. And I believe him Like the when he told us initially when this happened. shooting of JFK, Robert Kelly told us when this happened. He told us that it either happened when he was six or when he was nine. Keep in mind, unlike some parts of the country, Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 48 of 77 48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 here we go to school until the end of June. was nine up until late June of 1972. out of school in late June 1972. Robert Kelly So he would have got The summer in which Robert Kelly was nine, if summer is defined when you play outside and chase snakes and play baseball, the summer when Robert Kelly was nine was 1971. Mr. Kosnoff said in opening there was only a single shred of evidence that it happened when he was six. I forget Mr. Pfau's exact words now, but it was along the same theme. thread. Can we have the when did it happen chart? his mother. First That is not true. There is way more than a She testified that Mr. Loholt moved in late '69, '70 or '71, and that it happened within a few months of his moving in. She didn't know him well. In fairness to the truth, she also testified that it happened within a few months of his moving out. So what do we make of Ms. Kelly's testimony there? I think we have to conclude that there is not anything in Mrs. Kelly's testimony that would help you answer the question when. It can't have happened within a few months of moving in in '69 or '70, and it can't have happened within a few months of moving out in '73 at the same time. So she has told us two different things and they can't both be right. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 49 of 77 49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 front. So let's move off that Mrs. Kelly comment. She was asked by her own -- her son's own lawyer, Mr. Kosnoff, March 2nd, 2005, what happened in approximately 1971. is their thinking, not ours. This We didn't make this question They didn't say He said, what up, although we couldn't improve on it. what happened in approximately 1972 or '73. happened in approximately 1971. And if Mr. Gordon and I could have written the question, that is one we would have written. What did Mr. Kelly say? He said in Exhibit 20, pages 2 and 3, two separate events six months apart, that he was abused by a scout master at the age of six. And he said on the sheet we looked at a moment ago that he was a sexually abused when he was nine by a neighbor. The summer when he was nine, the summer when you can play outside, is 1971. He would have quit being nine in '72, about the time school got out. The last question on the Borland complaint If Bishop Borland at the time heard something that he felt constituted sex abuse or reasonable cause to believe sex abuse had occurred, if he was going to ignore his confidentiality obligation, if the Kelly abuse was still in the future, so that anything Bishop Borland did may have had some effect on -Remember if it was in '71 it already Bishop Borland heard in February '72. would have occurred. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 50 of 77 50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 If all of those things what would have happened? They have not brought anyone in here to tell you what the police would have done with a complaint in '71. What can Bishop Borland say consistent with his confidentiality obligation? It is my understanding that How much can he He certainly can't some improper conduct occurred in Kent? say? What would the police have done? identify Scott Pettit's name. What did Dorothy Kelly say? swept under the rug at the time. These things were I am Do I believe that? not prepared to buy it hook, line and sinker. But I kind of like to wish I had heard someone come tell us what would happen at the time, and no one did. There has been a total failure of proof on this issue of what would have happened. In order to find that the church is liable on this front you have got to find that Bishop Borland was told something that gave him reasonable cause to believe it was sex abuse, that it was not privileged and that he could have talked about it, that the police would have done something had they heard, and that Mr. Kelly's abuse -- I am up to my fourth finger -- had not already occurred. The burden of proof instruction in here tells you that the burden rests on the plaintiff. They have to convince you that their version of the facts is more probably true than not. Each of those four prongs they have Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 51 of 77 51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 to prove more probably true on. can't do it. When you add them up they We do know how some people would have acted in the early '70s. Not the police. Not CPS. We know how the Kelly parents acted. pretty easy. don't know. From the standpoint of 2006 it is Was the world different? I This is 1971. You have heard no testimony. I will make one more point about the reporting statute and then move on. surgeon and a practitioner. Dr. Allenbach himself was an oral He had a reporting obligation He would have independent of the fact that he was a Mormon. had a reporting obligation whether he been a Catholic, atheist or a Jew, whether he had been an American, an Englishman, whether he had been in the Kiwanis club or not. I like to change subjects if I could and talk about damages. Could we have the first chart with the four I am unable to clear my little red experts up please? things but I think we can survive with what we have got. This is the expert lineup in this case. And it is only a slight stretch to say it is four against one. Mr. Pfau wants you to accept Dr. Conte's testimony hook, line and sinker and jettison the testimony of the others. others? What do we know about Dr. Conte and the Dr. Conte did not review, prior to A quick list: forming his opinions, any of the anger control files or Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 52 of 77 52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Dr. Ben Hamida's file. He disregard grossly exaggerated interview evidence from Mr. Kelly. He concluded that Mr. Kelly was not intentionally misreporting symptoms, although Mr. Kelly, to his credit, sat on the stand and told you that he had intentionally over reported. He agrees with the MMPI conclusions of Dr. Wise and Dr. Ben Hamida. That while Mr. Kelly has problems, and we don't deny that, his essential personal profile is within normal limits. Could we have the Conte chart? Mr. Pfau told I would like you a few things about Dr. Conte's testimony. to tell you a few more. Mr. Pfau criticized Dr. Wise for concluding that victims of rape, on a more probable than not basis, wouldn't have symptoms later on. the same thing. He agrees with Dr. Finkelhor, who he recognizes as a world authority, that fewer than 20 percent of child sex abuse victims have significant psychological problems as adults. He told us that the impact on Robert Kelly, even He Dr. Conte told us from a professional point of view, is relatively subtle. is not suggesting that the abuse caused every aspect of this man's life. He does agree with Dr. Wise, that there is a biological basis for anxiety/depression, that Mr. Kelly is certainly not clinically depressed, that the MMPI validity Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 53 of 77 53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 scales are superior to what he did. And Rachelle Cope told him that Mr. Kelly was abused by his father, sexually abused by his neighbor and is living at home because he needs the support of his family for this case. We know Mr. Kelly is capable of skewing his answers when it serves his purpose. Can we have Page 17, Exhibit 4? This is how Mr. Kelly completed a chart for Dr. Ben Hamida in 2001 when it was in his interest to look like a healthy person. Page 4 of Exhibit 17. You will have it. It is And what it shows is a person with no problems. Could we have Page 11 of Exhibit 19, please? This is what Mr. Kelly told Dr. Conte in 2005 when it was in his interest to look ill. but look at the scores. Not just anxiety and depression, There is a bar graph above this on the page that you will have when you are back there, phobic, anxiety, extremely atypical; paranoid ideation, extremely atypical; psychotic, extremely atypical. Mr. Kelly is a smart guy. Dr. Ben Hamida? I am suicidal. I am not suicidal. What did he tell What did he tell Conte? Anger No. The What did he tell Dr. Ben Hamida? Did he mention it to Dr. Conte? problems at home. best evidence here is Mr. Kelly's own testimony. Could we have Exhibit 20, Page 2? When Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 54 of 77 54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Kelly was on the stand Mr. Kosnoff asked him about some of his answers to Dr. Wight and Dr. Waterland. And he said, And, I skewed the answers because I wanted to see my son. God knows, that is the best reason I can imagine to skew answers. But those are answers that you would skew to make yourself look healthy, like the ones we just saw. I would like to show you four things that Mr. Kelly said at the time he was trying to make himself look good. The bottom of Exhibit 20, Page 2. Skip the golf club. Let's blow He described that up one last time. his father's anger as explosive. When asked if he felt safe We didn't say that. and connected growing up he said no. Mr. Kelly said it. Could we have Exhibit 20, Page 3? did not feel safe at home. Exhibit 19, Page 32. 'Physical. He stated he Dad hit me with a golf club, caused a huge bruise. How did you feel? Pain, guilt, anger, emotional pain, that's then and now. Emotional. Father at 39. Dad's regular emotional outbursts, yelling. Very hurt, defensive." "Track your emotional Exhibit 19, number 33. energy. emotions. Describe a recent situation when you felt strong Name the feeling of anger, whether it is Rate the feeling frustration, tension or anything else. from one to ten. Feeling anger, level nine." Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 55 of 77 55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 or sister. Remember Mr. Kelly is trying to look good for these people. "My dad was yelling at my nieces and nephew I asked him to stop yelling at the kids This set me off. the other morning. and he yelled at me, no, I will not. Totally angry. My dad yelled at me since I was a kid, and I see that this pattern has been repeated with a new generation." in his family. Mr. Kelly's own diagnosis of what has gone on That is all I have for that. I Julie Ellis walked in here, his ex-wife. don't know if you could feel the courage in her testimony, but she did not want to be here. here. She did not want to be And she believes in the lady with the scale and she raised her hand and she told the truth, and she didn't want to do it. She said Robert felt like the black sheep at Asked, are you talking about No, abused at home. She said home, he was abused at home. sexual abuse by the neighbor? that Mr. Kelly called her a year ago and told her, don't tell the jury my mother was an alcoholic. She told us that his brother has built a house in the field in front of his parents. Whatever else you conclude in this case, I want you to conclude Mrs. Ellis -- Ms. Ellis has a lot of courage. They did not call Mr. Kelly's dad or his brother MR. PFAU: Objection, your Honor. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 56 of 77 56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: MR. TILDEN: The objection will be sustained. Mr. Kelly admits that he has never sought treatment, other than this brief visit in 2001 for any of his symptoms. An action speaks louder than words. When Mr. Kelly finally called someone in 2005 he didn't call a doctor, he called a lawyer. I want to talk to you some about the statute of limitations, why we are here in 2006 for events in 1971 or '72. This is the law that Judge Martinez has given you on You must bring an action for the statute of limitations. childhood sexual abuse within the later of the following: Three years of your 18th birthday. you are Mr. Kelly. That would be 1983 if Three years of the time the victim discovered or reasonably should have discovered that the injury or condition was caused by the acts, that his problems in life were cause the by the sex abuse, his contention. Or within three years of the time that he discovers that the sex abuse caused the injury for which the claim was brought. I will confess to you that I don't know the difference between B and C. But maybe you can divine one. In all events, Mr. Kelly's legal obligation is to bring a lawsuit within three years of learning the connection between the abuse and the acts. Now, he has told us, and Dr. Conte has told us, Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 57 of 77 57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that he is psychologically unsophisticated. do we know? But what else We know that his mom had a meeting or gathering We know that she in either 1971 or '72 with family members. attributed problems early to this. We know that he told Ms. deGuzman in the late 80s, '90, '91 at the latest, I was sexually abused as an explanation for his conduct. Jovine Umali told us that he told her in the '91 to '95 time frame. Julie Ellis told us he told her early in their relationship. He told Dr. Wise and Dr. Waterland in 2001. The first notice to us was in 2005. this matter? Why does What position would you all be in if this Allenbach -- claim had been brought in 1982? MR. PFAU: THE COURT: MR. TILDEN: Objection, your Honor. Overruled. Dr. Allenbach would still be alive, This debate about and he would be alive for 17 more years. what was told to Pettit or Borland would be a lot fresher in their minds. be fresher. The order in which the events occurred would What year it happened, what Mrs. Kelly believes, what Robert Kelly believes, all fresher. The discrepancies we have got in this case from the testimony are to be expected when witnesses are 70 and they are talking about things when they were 35. what the statute of limitations about. When does the statute of limitations run? It is That is Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 58 of 77 58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 their position it hasn't started to run yet and they can sue us forever. I want to talk to you about a handful of miscellaneous things, and then go to the verdict form. burden of proof, Instruction Number 8. The I hinted at this a minute ago because I got ahead of myself. "When a party has the burden of proof on any claim or affirmative defense by a preponderance of the evidence --" and that is all of the burdens of proof in this case "-- it means you must be persuaded by the evidence that the claim or affirmative defense is more probably true than not true." Their claims are that we were negligent with respect to either Dr. Allenbach or Bishop Borland's activities. limitations. Our affirmative defense is the statute of The burden of proof on all of them is a slight tipping of the scale in favor or against. We don't dispute that Mr. Kelly was abused. don't dispute he was abused six times. that he was abused by Jack Loholt. those things. We don't dispute We We don't dispute any of The burden of proof has been carried on all of that, because we don't dispute it. There are serious questions about when it happened, the order of it happened, who was told what and who would have done what. And the burden of proof has not Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 59 of 77 59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 been carried on any of those issues. Collectively these problems prevent Mr. Kelly from carrying this burden. This is especially the case where the evidence has been manipulated. You saw what he told Dr. Ben Hamida, What did he tell Dr. Conte in We know that he told his Exhibit 17, 2001, I am fine. 2005? I am really not fine. ex-wife to come in here and not tell you some important things. He claims here to just be in the initial stages of figuring out his problems and how they relate to the abuse, but he has been telling girlfriends and a wife that for 15 years. He has told us here that the abuse occurred when he was ten or 11 or 12, at a time before the lawsuit when he presumably wasn't thinking about a claim. He told people who counted it happened when he was six or nine. And, finally, it is a minor thing, but like the mark on the leopard maybe it helps you know it is true. He told you that he worked on merit badges with Jack Loholt. Well, in the Mormon troop you work on merit badges when you are 12 or 13 or 14. younger than him. 13. His friend, Jimmy Allenbach, was a year So Jimmy is 12 at the youngest, Robert is He turned 12 in 1974. He Robert was born in '62. turned 13 in 1975. This is long after anybody contends the abuse happened in this case. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 60 of 77 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Pfau has talked about a cover up. You heard Jack Loholt testify that he didn't masturbate in front of a field, on the videotape -- masturbate in a field in front of Mr. Kelly. Mr. Gordon and I speak for the Mormon Church on only about one zillionth of the possible things, but we speak for them on this subject. think he did. We don't believe that. We We are not covering it up. They asked Bishop Pettit -- former Bishop Pettit a question about what he told Randy Borland in 2005 -- in 2005 when they asked him what he told him 33 years ago. Bishop Pettit say it was confidential? He told them. them. No. Did He told them. We have produced They asked for old records. That comment is offensive. I want to turn your attention to the verdict form real quick. I don't know if this is in your package. But you will be asked to answer one or more questions. Question number one, "did plaintiff commence this action within the period of time required by law? Yes or no." For the reasons we have outlined we believe the correct answer is no. And we that we have carried our burden of proof on This lawsuit should have been commenced a long that issue. time ago. You will then see after the answer a direction to you that follows many of them. keep going. "If you answered yes, If you answer no, stop." Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 61 of 77 61 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Let's round out the remainder of the questions. "Do you find that the defendant --" that's us "-- is negligent?" We believe the correct answer is no. "Was such negligence a proximate cause of injury to the plaintiff?" Proximate cause is a fancy legal work. Here is what it means. I guess it is two fancy legal words. "The term proximate cause means a cause which in a direct sequence unbroken by any new independent cause produces the injuries or damages complained of, and without which such injury or damages would not have happened." In order to find the Mormon Church negligent you mind find that something we did caused this, and had we not done it, it would not have happened. Put another way, something we failed to do didn't stop it. You have to conclude more probably than not that if Bishop Borland had called the police, and consistent with his confidentiality obligation said, I have reason to believe there has been some abuse in the Kent neighborhood, that that would have prevented any subsequent abuse of Mr. Kelly. As part of that you have to conclude that the abuse hadn't already occurred. it had. "Was the negligence the proximate cause of injury to the plaintiffs?" No. We think it had, and he said Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 62 of 77 62 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "Do you find that any of the following non-parties were negligent in this case?" Dr. Allenbach and the Kelly parents. Instructions 9 and 10 tell you "negligence is the failure to exercise ordinary care." "Ordinary care is What This is what a reasonable person would have done at the time." would reasonable parents have done at the time? The contention here is that Bishop Borland is -the Mormon Church is wildly negligent for failing to call the police about a boy we never met. an outing -- a Mormon outing. Here we have parents of a boy who has seen an instance of masturbation in the field and do nothing. Is He wasn't injured on that reasonable behavior for a parent, besides go next door? You have the man next door, who has heard about it and done nothing. You can find fault, if you want, with our removal of Mr. Loholt as an assistant scout master, but we are the only party in this case that did anything. the only one. We believe you should find all three of these individuals negligent. We don't believe you will conclude We are they acted, at least in the sense -- with respect to the Kellys as parents should, with respect to Allenbach as a landlord and father himself should. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 63 of 77 63 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Our favorite piece of evidence with respect to Dr. Allenbach on this score is one that came out maybe sideways during the trial. But Mr. Kelly is now suing Dr. Allenbach's estate and Mrs. Allenbach, his still living wife. He believes he is at fault. "Do you find that Herman Allenbach was an agent of defendant acting within the scope of his authority with respect to acts or omissions of Loholt?" has to be no. Mr. Loholt. Mr. Loholt. The answer to this He had a landlord/tenant relationship with He had a employer/employee relationship with Herman Allenbach's relationship with the church Herman Allenbach taught the 14 had nothing do with this. and 15 year old boys Sunday school. "Assume 100 percent represents the total combined negligent that proximately caused the plaintiff's injuries. first page. Your Honor, there should be a Herman Allenbach here on question 7. In all events, we believe that any -- we believe the proper percentage applied to us is zero. We believe the What percentage goes to each?" We are on the statute is filed well beyond the statute of limitations and you should never get to this question. But if you are here, we bear a tiny portion of the responsibility compared to people that knew about the masturbation in the field, knew Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 64 of 77 64 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 about the Allenbach boys in the basement, knew it was their own son and did not do a thing. divide up the percentages. "What do you find the amount of plaintiff's compensatory damages to be?" We believe the number Think That is question 8. You suggested by Mr. Pfau or the ranges were remarkable. about what you invest that money at and what the return would be. Then finally question 10. There is an argument that we are all beating ourselves up about this, all of us. Maybe more than we should. Jack Loholt. There was a bad actor here. And he was a Mormon, the same way that Charles Hitler did belong to Manson probably belonged to a church. a church. 40 percent of America goes to church, and a lot of them do bad things. Let's flip it around. Mr. Pfau spent an hour talking about things he thinks are bad, and I have spent most of my time on a similar subject. something good for a second. Who gets credit for that? ball? His coach in Mobile? Let's assume it was Hank Aaron has 755 home runs. His dad who taught him to play His priest? His minister? No. When you Youth leader? Professional baseball coach? go to the record book none of those people get any credit. Hank Aaron hit the home runs. Jack Loholt did this. And we believe that anyway you carve up responsibility for it the Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 65 of 77 65 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 vast majority of it rests with him. That is about all I have to say. conclude with a few remarks. one case. I want to First, we are just here to try There are other sex abuse cases in the country. And many of them will have different We all know it. outcomes. We are only here about this one. Second, it is hard emotionally sometimes to send a plaintiff out of court. about it. It is hard. But you can't think You have to do it. Instruction Number 1. This is the first instruction. "You must not be influenced by any personal This likes or dislikes, opinions, prejudices or sympathy." is a hard thing to do. When you come in the courthouse downstairs on the first floor you go through a metal detector and all the metal gets left behind. When you walk through these doors or those you go through a similar detector, and all the sympathy and all the prejudice has to be left behind. That is your job. And I am not here to tell you it is easy. about it. But the judge has been quite clear Why is it important? If we are not going to follow that rule then anybody can be liable for anything. Right? The symbol of justice in America is woman with blindfold and scale. Who knows what is in her other hand? Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 66 of 77 66 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I have been a lawyer for 25 years and I was 50 before I learned this. Don't beat yourself up if you don't know. In her other hand is a sword. There are statues of lady justice in which the scale is down by the side and the sword is in the air. It gives you an entirely different picture of what goes on in the courthouse. The scale symbolizes the careful weighing But of the evidence and the following of the instructions. the sword symbolizes the courage to do what you have to do. The scale is no good if you refuse to do what you have to do. The Judge has told you in Instruction Number 3 what evidence is. The evidence here is the documents and The witness chair was there, and what the witnesses say. you saw them all. No one sat in that chair and told you that we knew Mr. Kelly at the time, we knew he was being abused, that he was abused on Mormon Church property or on an outing. No one sat there and told you that we introduced They met in his neighborhood. It could Jack Loholt to him. have been any neighborhood. Everyone told you that Mr. Kelly was aware of the abuse at the time, that Kelly parents were informed and Dr. Allenbach knew. was six. Mr. Kelly told you it happened when he His girlfriends and former It happened when nine. Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 67 of 77 67 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 wife told you he connected the abuse at the time years ago. Mr. Kelly told you that the cycle of abuse existed in the home and started early. Mr. Kelly's lawyers told you in a question to Mrs. Allenbach that it happened in 1971. In a courthouse about a mile from here they are telling someone that Dr. Allenbach -MR. PFAU: THE COURT: MR. TILDEN: Objection, your Honor. The objection is sustained. Lawyers spend all of their time I don't know if you all We wondering what the jurors think. have spent any time wondering what the lawyers think. think when you analyze the evidence through the burden of proof this is not a close call, which is not to say that Mr. Kelly did not have five or six really, really, really bad things happen to him. That's not the issue for you. If we were to address that issue we would have agreed, we did agree, and we would have been gone a week and a half ago. The question instead isn't Mr. Kelly, it is who is responsible for the events that occurred. That's all I have about the case. tell you one other thing and then sit down. three minutes. I want to I think I have All the lawyers in the case, we are here You don't because we think this is really, really neat. know us. We don't know you. You have been called off the Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 68 of 77 68 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 street to answer questions for your fellow citizens whom you have never met. It is amazing, isn't it? 5,000,000 people will be called to jury duty this year. 1,000,000 people will serve. 80,000 juries. You The jury is the most powerful arm of the government. don't feel powerful because you are made to come. have a choice. You don't The power is split up each year among 1,000,000 of you. Imagine for a second there was only one juror, and that person answered every question in American courts all the time. hate them. We would know that person's name and we would And the British figured out a long time ago that what you ought to do with power that immense is spread it up, divide it equal. The jury system fulfills the promise that every man in America will be a king or a queen. Thomas Jefferson said that the right to trial by jury was more important than the right to vote. Mr. Gordon and I, I don't know whether we believe that or not, but we really like the way it sounds. time. THE COURT: Thank you, Counsel. Members of the Thank you very much for your jury, once again, please give your attention to Mr. Pfau for a short rebuttal. MR. PFAU: Six minutes, Counsel. Thank you, your Honor. Ladies and Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 69 of 77 69 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 gentlemen, the message was delivered in sheep's clothing by Mr. Tilden, but make no bones about it, it was a classic rape defense, pick apart the victim, blame others. It is an effort, ladies and gentlemen, to take you away from the facts. Think about the facts. Think about what you have written down. Think about what you said. I have limited time so I can't address every point, but I want to address some important points. Mr. Gordon said there are other sex abuse cases in the country. There are other sex abuse cases in this state. And there is a reason that are sex abuse cases in this state dating back many many years. And that is because Washington has one of the broadest statute -MR. TILDEN: Your Honor, we didn't say any of this, and we deny that. THE COURT: MR. PFAU: The objection will be sustained. Let's take a look, ladies and This is the statute of It is the gentlemen, at Exhibit 25. limitations. It has some markings on it. instructions on the statute of limitations. Mr. Ellis (sic) said, I didn't know the difference between -- Mr. Tilden said, I didn't know the difference between (b) and (c). between (b) and (c). I know the difference "Any And it is very very important. person bringing an action for recovery of damages caused by Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 70 of 77 70 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 childhood sexual abuse must commence his lawsuit within the latter of the following periods:" And I point your attention to period (c), which applies here, "within three years of the time the victim discovered that the act cause the injury for which the claim is brought." It is a complicated question, ladies and gentlemen. In order to trigger the statute of limitations the plaintiff needs to know that the sexual abuse caused the injuries for which he is bringing this suit. Dr. Conte and Dr. Ben Hamida have both testified that he is psychologically unsophisticated, and he has no idea what the effects are. That is the standard. It is not, were you abused three years later. know you were abused. you were abused. It is not, did you It is not, did you tell a girlfriend Mr. Tilden pushed the limits when he said that the conversations with girlfriends had to do with the effects of the abuse. And even if that had been the case, until Mr. Kelly understands through therapy or through evaluation how the abuse affects him the statute of limitations has not begun to run. That is the law in Washington. I want to turn your attention to another issue which is seemingly confusing. dedicate to it. form. And I wish I had more time to It is question number 10 on your verdict And this is the segregation of damages between Loholt Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 71 of 77 71 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and the Mormon Church. "What percent of damages in your answer to question 9 do you find were caused by the negligent conduct and what percentage were caused by Mr. Loholt's intentional conduct?" That is not an allocation of fault. They tried to argue that it is. fault. Who is at fault, what percentage of The way this is interpreted, ladies and gentlemen, is, are there any damages that were caused by Loholt's intentional conduct that were not caused by the negligent conduct. I will give you two examples. relevant. One very very Loholt can be characterized as an animal, what he A tiger. A tiger escapes in the zoo and Do you sue the tiger for did to these kids. malls a child. A lawsuit ensues. his intentional acts? The tiger knew what he was doing. Or does the lawsuit lie in Loholt knew what he was doing. negligence for the actions of the gatekeeper that let the tiger out? It may seem like a silly analogy, but that is It is not an allocation the proper method to analyze this. of fault. It is a segregation of damages. Another way to think of it is, but for the acts of the Mormon Church, Loholt's intentional acts would have not have damaged the child. A couple of things I want to comment on, and Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 72 of 77 72 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 then my time will be up. We talked about Julie Ellis having Ladies and gentlemen, she was Consider that the courage to come in here. seething with hatred. She hates my client. when you consider the source of some of her comments. Interesting. The time. Look at the facts. Don't look at people talking about what age they remember. Yes, Robert Kelly was age nine in the summer of 1971. was also age nine in the summer of 1972. important. He But that's not What is important is what acts support and what We have been through that. What facts support the summer of '72. Interesting. could we have done. What could we have done. The parents, they are to blame. Dr. Allenbach and the parents They Dr. Allenbach is to blame. did do something. The parents went to Dr. Allenbach. went to him because they knew he was a neighbor, and they knew he was affiliated with the church, and they knew that Loholt was affiliated with the church. take action. They asked him to And he was gone within months. That sleep over It was Brent Consider an important fact. took place in 1971 -- in October of 1971. Allenbach's friend. All the evidence suggests that this was in the summer of 1972, that Dr. Allenbach, while potentially not acting quick enough, did remove Loholt when he received the complaint about the masturbation. house. He got him off the property. He bought him a Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 73 of 77 73 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Would he have been in the house in 1971 if the Kellys had made that complaint prior to that time? doesn't make sense. Causation. What could we have done, what could They could have done It we have done, what could we have done. a lot. Bishop Borland, you need to assess his credibility. He is either not telling you the truth, ladies and gentlemen, or he didn't do anything to investigate on what were clear facts and red flags. From his mouth he gave you all the things he could have done, call the police, call CPS, investigate, etcetera, etcetera, etcetera. lead to 152nd Street. The evidence is, that while Robert Kelly was not a Mormon, he lived right next door to someone who was the youth pastor. And on the issue of agency, don't fall for All roads this analysis that if he heard about the information when he wasn't at church it is not information he can do something about. Even if Dr. Allenbach heard about the information when he was at home, through his son, when he went to church and he was a youth pastor working with Loholt he possessed that information and he could have gone to the bishop. And the bishop gave you a litany of ten things, including taking a brick hammer to the victim, that he could have done and he would have done (sic). Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 74 of 77 74 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Finally, be aware of his confidentiality. Confidentiality is what the bishop said it is. They said it was confident in the deposition, they waived it, and they came into trial. He went to Loholt with the information he had. He could have gone to the police with the information he had. Thank you. I agree with everything Mr. Tilden We believe in it. Thank you. As I said about the jury and the jury process. We believe that will you do the correct thing. THE COURT: Thank you, Counsel. All right. told you, we are going to go ahead and release you for tonight. Tomorrow morning I want you back in our jury room at the same time. You are not allowed to deliberate, not allowed to discuss the case amongst yourselves until all of you are present. All right? All of you have to be there. Then you start the deliberation. The flip side of that is you are not allowed to deliberate with anyone else other than the jurors present. That includes our staff. If Ms. ^ Courisma or Ms. Williams are coming in there, they will knock on the door to announce that they are coming in to talk to you for whatever reason, you are to stop deliberating at that point in time. You are not allowed to deliberate with anyone else present in that Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 75 of 77 75 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 room. For your information, once we begin deliberations we will release you at 4:30 instead of 4:00. If that effects ferry schedules or anything else like that, you need to let me know, or let Ms. Cuaresma know it is going to be a problem. The other thing we do for you, aside from holding you for another half hour, is we provide lunch. you have been bringing your lunch, don't worry about it tomorrow. If you are deliberating through lunch we will If provide lunch for you. Any questions? to you yet. Great. Remember the case is not It will not be to you until you come into our jury room tomorrow. What you will find is my original copy of the instructions that are signed. You will find the special verdict form that you not have in your packets, but it is attached as part of this. exhibit that were admitted. And will you find all of the At that point in time, once everybody is there, you are free to begin deliberations. Have a great evening. tomorrow. We will see you all Just like we ask you to leave your notes, we ask that you leave your copy of the instructions here. (At this time the jury left the courtroom.) THE COURT: Counsel, thank you very much. We ask Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 76 of 77 76 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that you be no further than 15 minutes away from the courthouse in case the jurors have a question, or they reach a verdict. Will that be a problem for either side? No, your Honor. All we need is one representative. We MR. GORDON: THE COURT: don't need to have everybody present. The other thing is, please leave with Ms. Cuaresma cell phone numbers. to get a hold of you mean. Two, I don't know if you have already done this or not, but I need to review the exhibits to make sure we all agree. If there is any disagreement I want to be able That will make it easier to deal with it before they go to the jury tomorrow morning. MR. PFAU: Your Honor, do you want us to do that tonight or tomorrow morning? THE CLERK: THE COURT: Let's do it now. We will be in recess. (Adjourned.) Barry Fanning, RMR, CRR, CCP 700 Stewart Street Seattle, Washington 98101 (206) 370-8507 Case 2:04-cv-02338-RSM Document 252 Filed 02/05/2007 Page 77 of 77 77 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATE I, Barry L. Fanning, Official Court Reporter, do hereby certify that the foregoing transcript is true and correct. S/Barry L. Fanning ____________________________ Barry L. Fanning