The October/February Surprise – An Analysis

Recently, the exmormon community lit up with the announcement that Tom “The Anointed One,” famous for having left the church after receiving his second anointing, is taking Thomas S. Monson to court for fraud.

The question I have is, is there any merit to the claims, or is it, as LDS spokesperson Eric Hawkins said, just to “seek to draw attention to an individual’s personal grievances or to embarrass Church leaders”?

First some history.  Grandison Newell was a millionaire in the Kirtland area when Joseph Smith and his mormons moved in.  He ran lawsuit after lawsuit after Joseph, based on tiny grievances or completely baseless claims just to annoy him.  Think of Mr. Burns from The Simpsons. These are the basis for the “baseless claims against church leaders” commonly mentioned by apologists.  

Please note: Joseph Smith had been found guilty of con-artistry in 1826, by this point; although the penalty was tiny.  He would be found guilty of illegal banking in October 1837, just a few years later for the Kirtland Safety Society (See my timeline) and that was upheld by a later verdict on a similar situation.  He was charged with bigamy, but they found no evidence; yet he was guilty.  He was also charged for treason, but was released as the charge didn’t hold; however, with the council of the 50 notes we now have, and knowing there are more in the vault, he was likely guilty of treason.  Remember, innocence and “not guilty” are not the same thing.

Also of note: Brigham Young was removed forcibly from being governor, and accused of treason, he was pardoned for it, but there was no trial to declare him “not guilty,” and it was mostly ignored because of the coming Civil War issues.  In the 1870s, the Supreme Court declared in the Temple Lot case that the RLDS church was the correct succession (legally), and in 1890 the Supreme Court ended the Church of Jesus Christ of Latter-day Saints.

There was also a court case involving Rex E. Lee (warning exmormon link) and keeping black men out of the priesthood just before god revealed that everyone could hold it.

Basically, the church leaders have not always been paragons of virtue, and all legal claims were not baseless against them as the PR person seemed to indicate.  There were some, but not all.

So is this one valid?

BEFORE WE GO ON.  I AM NOT A LAWYER.  THIS IS NOT LEGAL ADVICE.  THIS IS A DUDE ON THE INTERNET TRYING TO PUZZLE THROUGH SOMETHING.  WANT LEGAL ADVICE, GET A LAWYER.

UPDATE: Actual lawyers weigh in on both sides (mostly against this having any impact) on this reddit post.

The Prosecution

First we have to see what the prosecution is suggesting.  According to MormonThink, they are pressing 7 doctrinal issues.

1. Book of Abraham translated from Egyptian papyrus scrolls
2. Book of Mormon translated from ancient gold plates by Joseph Smith is the most correct book on earth and is an ancient historical record
3. Native Americans descended from Israelites who left Jerusalem in 600 B.C.
4. Joseph and Hyrum were killed in Carthage as martyrs because they would not deny their testimony of the Book of Mormon
5. The Illinois newspaper, The Mormon Expositor, had to be destroyed because it printed lies about Joseph Smith
6. There was no death on this planet prior to 6,000 years ago
7. All humans who are alive today are descended from just 2 people who lived approximately 6,000 years ago

Breaking these down into 3 groups, the fraud charge is around “Was Joseph a real prophet, is the book of Mormon true, and is young-earth creationism true.”

So what does a fraud charge in the UK mean?
Fraud in the UK is committed when one:

1. Falsely represents
2. Fails to disclose information
3. Abuses position

To commit Type 1 fraud one must “dishonestly makes a false representation, and intend, by making the representation to make a gain for himself or another, cause loss to another or to expose another to a risk of loss.”

Tithing, and the cost there, is pretty easy to show an intended gain for himself OR ANOTHER.  I think that is key. After all, in the U.S. corporations are people, and the corporation of the president very much does gain if people pay tithing.  I wonder if this opens up to having financial documents disclosed during the trial.

For example, if one were able to begin the court case with the above 7, but in discovery get financial documents which showed clearly that the Mall was built with tithing dollars, while the PR deparment claimed that no tithing dollars were used, could that be added to the list of charges?  Or would it create a new case?

A representation is false if it is untrue or misleading, and the person making it knows that it is, or might be, untrue or misleading.

And here is where the the defense will step in, I presume.

THE DEFENSE – Cluelessness

The largest uphill battle for Tom and company will be that Thomas S. Monson and the others can play dumb.  “Did you know that BYU scholars agree that the Book of Abraham is a funerary text?”  Tommy: “No, I was unaware.”

This was Alberto Gonzales‘ defense, and was also attempted by Ken Lay in Enron.  I don’t know how those cases may impact the UK, but at least it was found not to hold for Ken Lay.

But there is another snag.  Thomas S. Monson may have Alzheimer’s, if reports are to be believed, which puts us into Ronald Reagan “I cannot recall” territory.  He could legitimately not remember much of the claims of the church.

Does Fraud type 2 apply?

Fraud type 2 is when a person dishonestly fails to disclose to another person information which he is under a legal duty to disclose.

Here is the question, under UK law, does Monson have to disclose that the Nauvoo Expositor was about polygamy? Or that Native American DNA doesn’t seem related to Israelite DNA close enough to make a 600 B.C. claim legitimate?  I can’t find any evidence that he does, so I don’t think fraud type 2 applies.

Fraud Type 3, what I think the case is going to be based on:

Fraud type 3 occurs when a person occupies a position in which he is expected to safeguard, or not to act against, the financial interests of another person, dishonestly abuses that position, and intends, by means of the abuse of that position to make a gain for himself or another, or to cause loss to another or to expose another to a risk of loss. A person may be regarded as having abused his position even though his conduct consisted of an omission rather than an act.

Mr. Monson must now prove that he didn’t omit truth when it came to safeguarding the financial interests of another person.  This is muddy water, but if one can tie tithing to the doctrines, then perhaps one could put Mr. Monson in the hot seat as “safeguarding” the financial interests of the members.

In which case, any omissions made would become pertinent to the case, and all the information that the church was hiding could be admitted to public record in the UK legal system– including the church having to defend (not via FAIR/FARMS) positions it has hitherto been able to brush off.

And I think this is what Tom & Co. are going for.  They are going to get all the dirty laundry out in the news at a time when the church is faltering for members, and make the Prophet take a stand on it.

Whether members will believe a “crazy senile prophet who forgets” defense is yet to be seen.

Another snag The Fraud Act 2006 has had: its provisions do not apply retrospectively, which means that only conduct which has taken place entirely since January 15, 2007 can be prosecuted under the new provisions.

That means that anything Mr. Monson and others said prior to Jan. 15, 2007 cannot be held against them.  Only claims of the Book of Mormon’s truth, or the Nauvoo Expositor, since January of 2007 would be pertinent of the case.

According to a search on LDS.org, there have been 0 articles written or spoken at conference on the mormon expositor since 2007.

DNA research on Native Americans happened in 2004, although the church did publish an anonymous article on its website in 2014.

Even claims of the Book of Mormon being the “most correct book” have dried up since before 2006.

This bit may be very difficult for the prosecution.

Did this kind of strategy work in the past in the UK?

By 2009, 183 convictions  (See chart half way down the page) were made under the Fraud Act, mostly regarding mortgage fraud.

I can find no instance where this law was challenged over a case of religious claims, but there is not special exception for religious belief either.

Further, it appears that the LDS church could countersue under the 2008 amendment.  The Act was amended by the Racial and Religious Hatred Act 2006 to criminalise hatred against a person on the grounds of their religion.

If Tom and his lawyer ARE just doing it for personal grievances, as the PR representative claims, he is playing with fire.

A lesson in Poker and lawsuits

I was once taught a very important lesson in poker.  If you show all your cards, you will lose the game.  You may win the hand, but no one will raise the pot very much.

My guess, and some information, leads me to believe that Tom has some additional information that would gain a conviction on at least one of the charges.

For example, a video of security footage showing Thomas S. Monson doing cocaine off a hooker’s chest in his private office, would not get a fraud conviction.  It might not even raise eyebrows on most members if he said he’d repented since.

But, if they had emails back and forth in which Monson and others on the board of directors made these claims, privately to Tom or to others, that might signify.  He doesn’t have to prove that Monson lied to everyone in the church, just to him.

But just as with OJ Simpson, there are two courts here, and I think this is what the official church PR person was referring to.  Even though the jury had to acquit OJ if the glove didn’t fit, the court of popular opinion knew he had done it, and he suffered from it. Similarly, the church and Monson can take defense as they like, but they could lose far more in future tithing revenue if they don’t play this carefully.

Which is why the church has a history of settling lawsuits, and not trying to pretend it is innocent.

I wonder what Tom Phillip’s purchase price is?  I bet the LDS lawyers are asking themselves the same question.