BishopAccountability.org
	Request for Documents in Church Case Denied Ocala.com November 10, 2010 http://www.ocala.com/article/20101110/ARTICLES/101119973/1005/SPORTS01?Title=Request-for-documents-in-church-case-denied It began with a prosecutor's hunch that leaders of a local religious organization were warning members, in writing, about the church's potential financial stake in a pending criminal case against one of their own. That hunch led to the issuance of a subpoena to the senior pastor of Open Door Community Church and the head of its adjoining school. They were ordered to produce all documents, including letters, e-mails and bulletins, discussing the case. But the attorney who represents the church and the defendant — David Lanham, a 29-year-old former church teacher charged with 19 counts of sexual abuse against minors — wouldn't have any of it. He made his vehement protests known to the court Wednesday — and prevailed. "With all due respect, judge, that is none of their damn business," criminal defense attorney Henry Ferro told Circuit Judge Willard Pope during an emergency motion to quash the subpoena. "They don't have a right to go in and [ask] these folks, 'What kinds of letters are you writing?' It's freedom of speech." In his written motion, Ferro characterized the subpoenas, filed by prosecutors Tim McCourt and Lori Henry, as a "draconian and dictatorial demand" intended to "chill the free speech" of members of Open Door Community Church, a small evangelical congregation in Summerfield. He regularly invoked the individuals' constitutional rights during statements to the court Wednesday, as the church's senior pastor, Gerald T. Bustin, and his daughter, Wendy D. Gallegos, sat beside him, listening intently. "This case is about David Lanham allegedly committing serious offenses against children at the church," Ferro said to the judge. "This case is not about Ms. Gallegos doing anything wrong. This is not about Pastor Bustin doing anything wrong." Prosecutors contend the pair may have alerted members to a potential civil lawsuit down the road, one that could financially ruin the church in the event Lanham is convicted. They believe correspondence soliciting certain prayers or a defense fund for Lanham, who is accused of sexually molesting at least four minors while he served as a day care aide, could be instructive in revealing any bias from these possible state witnesses in potentially concealing or fabricating their knowledge of events. "What we are looking for is what motive, if any, members of the church would have in being less than truthful," McCourt explained to the judge. But even the judge seemed perplexed by the scope of the request, asking what specific document the prosecution sought and whether such materials could be obtained in a "less than intrusive manner." Pope granted Ferro's motion to squash the subpoena, acknowledging it was "overbroad." But the state is permitted to file an amended subpoena. But it must be specific as to the documents sought and be subject to preliminary review by the judge. "When we make a request like this for documents, it's sometimes very hard to be particular enough in your request," McCourt said in an interview later. "What we're looking to do with these documents is to fully investigate allegations of child molestation." He contends that he and Henry, who was not present Wednesday, are not trying to infringe upon constitutional rights. He said he recognizes that certain privileges do exist, such as attorney-client privilege, in producing documents or correspondence. When it comes to documents under the purview of a religious institution, however, legal experts say there's not much of a privilege as far as they know in the state of Florida, with the exception of confessions uttered to a priest, for instance. "I suppose at some point you could argue the state is acting to harass a religious organization merely to harass it, or prevent it from congregating. Presumably that could rise to a level of denial of a constitutional right," said University of Florida law professor Michael L. Seigel, who teaches evidence and criminal law. "But, frankly," he added, "that would have to be an extreme situation. You would have to induce some significant proof to carry the day that the government's activity has amounted to such a burden." Based on Ferro's heated remarks to the judge Wednesday, it would seem that is what he wished the court to believe to have occurred. "When we start allowing a state agency to look into men's hearts and souls, we're way off the Constitution," said Ferro, who accuses the state of seeking out "protected speech" in requesting in its subpoena e-mails soliciting "prayer" for the defendant. Open Door Community Church is affiliated with Evangelical Bible Mission International, a registered religious nonprofit organization that is incorporated in Florida, according to its website. Lanham was a worship leader and music teacher at Royal Child Academy, a day care and school connected with the church. Authorities say he improperly touched four children, ages 5 to 11, while working. He was arrested in March this year and is free on bond while awaiting trial. Bustin and Gallegos may eventually be required to produce specific written correspondence to the court per the state's future amended subpoena. That possibility seemed to settle fine with Ferro, who just recently has stepped in as Lanham's defense attorney. It's unclear, nevertheless, whether Ferro's vivid statements regarding free speech, now part of the permanent court record, could factor in this case. "The balancing tends to come down in favor of law enforcement in the interest of prosecuting crimes," said UF law professor Lyrissa C. Lidsky, who teaches First Amendment law. "That [accusation of child molestation] is such a serious crime and of such great public interest, I don't think there's much weight to any First Amendment case." Contact Suevon Lee at 867-4065 or suevon.lee@starbanner.com.
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