Rubino indicated that he had been dealing with Cook for months regarding sexual allegations against Father Ellis Harsham and considered his client to be totally believable. Although he had been considering a suit against Bernardin for negligently supervising the Archdiocese of Cincinnati, it was not until early October 1993 (five weeks before the suit was filed) that Rubino became advised that Cook recalled actual sexual contact with Bernardin. Rubino was aware that the recollections derived from hypnosis, so he had his client take a lie detector test, a precaution he said he had never done with a client before. Cook passed "unequivocally."
Rubino noted that Cook's accounts indicated that Rubino could not count on any witnesses to the incident, so he had to rely on "timing, history [and] proximity" to determine the likely veracity of his client's story. He cited a book Cook said he had received as a gift from the cardinal in Bernardin's private quarters.
Rubino said he actually discounted the hypnotic recall, in part because the timing of the therapy--in the process of preparing a lawsuit on negligent supervisionÑmight have created a "potentially problematic poisoned environment." Rubino indicated that he also knew at the time that the therapist was not licensed, had not completed the recognized course work in hypnosis, and ran a graphic arts company as her major source of income. He was not convinced at the time he filed the suit, however, that Cook's recall of the sexual encounter related to the hypnosis.
Rubino characterized his role as attorney in a limited way, noting that a lawsuit "belongs to a client," and that his client wanted to get his story out. He reflected that in looking back, he did not envision the "firestorm" that ensued when the suit was filed and CNN was given an exclusive interview.
Rubino said the suit was timed to coincide with the national bishops' conference in Washington, D.C., the following week, but was not leaked to CNN to meet the network's November deadline for its scheduled documentary on sexual abuse in the Catholic Church. He added, however, that he had used the bishops' conference in an earlier case to maximize press play and believed that media attention is a valuable asset in such litigation.
When asked by Callaway, "What was your measure of the man [Bernardin]" when the suit was filed, Rubino said he considered that Bernardin "just about like all the rest of the hierarchy, bought into the theory that sex with kids is a moral failing. For anybody else, it's a crime." He regards the filing of the suit against Bernardin as the most difficult decision of his career, not because Bernardin was a cardinal but because he had never before represented a client who was close to dying (of AIDS).
Rubino said he ultimately decided to drop the suit four months later after finding out more about the hypnosis, conducting a second lie detector test, challenging his client to document specifics, and recognizing that the admissibility of the psychiatric testimony would be questionable. He maintained that when filed, the suit was absolutely well grounded in fact. He recognizes that the suit hurt Bernardin, and for that he would apologize, but he does not feel he did the cardinal wrong. He would oppose any suggestion that such inflammatory allegations should be sealed until the facts are proven. "We live in a system where we have to move forward with filing a case," Rubino concluded. "We have to move forward with getting at the truth no matter what the cost."
John O'Malley, Director of Legal Services for the Archdiocese of Chicago, responded that he was "offended" at the suggestion that the suit was filed to coincide with the bishops' conference and controlled to play to a single media outlet. He also felt that Rubino did not fulfill his obligation--either to his client or to the accusedÑto evaluate the case critically before filing suit. O'Malley agreed with Rubino that such inflammatory suits, even suits based on repressed memory, should not be sealed or treated differently from other civil suits. However, they differed on a factual point, with O'Malley saying that Rubino could have avoided obvious mistakes if he had only contacted Bernardin before filing suit, and Rubino saying that he had notified the Archdiocese of Cincinnati.
Jason Berry, author of Lead Us Not Into Temptation: Catholic Priests and the Sexual Abuse of Children, noted that in the seven years he spent studying cases of abuse by priests, the church repeatedly used and abused the process of sealing court cases to conceal patterns of transferring pedophiles from one parish to another. Callaway underscored that the history of such practices and the suspicions they have engendered may have made it more difficult for Bernardin to opt for sealing the suit against him.
The discussion then turned to the media's role in the case, with Callaway noting that much of the criticism in the aftermath of the Bernardin case had been leveled not at the attorneys but at CNN.
Bonnie Anderson, the CNN national correspondent whose documentary "Fall from Grace" ran the Sunday after the Bernardin suit was filed, said she first met Rubino and Cook in October 1993 after working on the documentary for 10 months. She was told then (not on camera) that they were considering suing Bernardin for sexually abusing Cook but were going to commission a lie detector test first. The documentary was set to air on November 14, before the national bishops' conference. She did not interview Cook on camera about the inflammatory allegations against Bernardin until early November, after she was told Cook had passed the lie detector test. The interview ran for 40 minutes.
Anderson said that at that point, as a journalist, it did not matter whether she believed Cook or not. She would report the filing of the suit when it was filed but not before, which she did. She said she went further by confirming underlying facts, particularly about Father Harsham and by demanding to see the lie detector tests. Anderson realized that she could not confirm the allegations against Bernardin directly because the accounts would make it Cook's word against the cardinal's. So confirmation of facts relating to Harsham lent credibility to Cook's allegations against Bernardin. She said she knew nothing about the therapist before airing her documentary, except that the therapist had used hypnosis to recall Cook's repressed memories and that such practices were controversial. She said Rubino refused to identify the therapist to her.
Anderson defended the documentary and CNN news reports on grounds of fairness and balance by stressing that the network had ensured that whenever Cook was shown making an allegation, a response from Bernardin or about Bernardin of equal or longer duration was juxtaposed.
A videotape of the opening segment of the documentary, "Fall from Grace," that aired on Sunday, November 14, 1993, was shown. Anderson stood by the documentary and the promotions that preceded it. O'Malley disagreed, saying everything from the timing of the documentary to the appearance that Bernardin was defending priests presented an uncritical view of Cook's allegations and a critical view of Bernardin.
David Clohessy, National Director of the Survivors' Network of Those Abused by Priests (SNAP), whose allegations of abuse by a priest were left unresolved by the Missouri courts, said that O'Malley and the archdiocese were just trying to score a public relations victory. He noted that all attorneys, including archdiocesan lawyers, use legal tactics to minimize the coverage of bona fide abuse cases against their clients. "I'm troubled by the presumption that somehow the cardinal is entitled by virtue of his stature to a different standard," Clohessy said. He pointed to the larger context of more than 500 pending cases against Catholic priests, adding that pedophiles tend to be charming, personable, and charismatic.
Daniel Lehmann, Chicago Sun-Times federal courts reporter and former religion writer, agreed that the news media should not treat Bernardin differently because he is a cardinal, but questioned whether there would even be a conference on inflammatory allegations if they had been leveled against another public official, even the Mayor of Chicago.
Callaway returned to the way in which CNN promoted its documentary. Anderson clarified that the promotion using Cook and Bernardin began running on Friday, only after the suit was filed in Cincinnati and after the Chicago media broke the story on Thursday. A different promotion ran for two days before that.
Callaway asked Mary Ann Ahern, a television reporter for WMAQ-TV, Chicago, who reported on the allegations the day before they were filed in court, about the breaking news coverage. Ahern noted that the 5 o'clock news on Thursday, November 11, did not even lead with the Bernardin story, though she thought it should have. She indicated they would not have even run the story had Cardinal Bernardin not confirmed that he too was told the suit would be filed the following day.
O'Malley said he had no objection to the story being aired the day before the suit was filed and admitted that the cardinal recognized that by returning Ahern's phone call and being candid with her, the news media would feel free to run with the story.
Edward Walsh, Midwest Bureau Chief of the Washington Post, said the Post ran the breaking story on page three of the front section. He defended the story's placement, adding, "If we had put it on the front page it would have perhaps suggested that we believed these charges, when in fact I did not believe them at the time."
When Callaway inquired whether Walsh was disagreeing with Anderson's position that it was not a journalist's job to believe or disbelieve what a source says, Walsh refined his statement to being "skeptical" of Cook's allegations. He said his skepticism was triggered in part by the CNN interview itself, in which Cook admitted that he recalled the abuse by Bernardin a year after he had begun to move on his allegations against Harsham.
Jan Crawford Greenburg, a legal affairs reporter for the Chicago Tribune, noted that the Post's coverage makes sense for Washington or for the national media, but for Chicago, with its sizable Catholic community under Bernardin's leadership, the story had to be treated more fully. Having said that, she argued that the Chicago media coverage was "exceedingly fair" to the cardinal. The Tribune's Saturday headline was pulled from Bernardin's own words: "I've led a chaste life." After that, she said, the Tribune carried a number of stories questioning both the allegations and the procedural obstacles Cook's case faced.
Ben Kaufman, a federal court reporter and former religion reporter for the Cincinnati Enquirer, said the case played on page one in Cincinnati from inception to dismissal four months later. "This story came close to overwhelming us," Kaufman recalled. Because the incidents were alleged to have taken place in Cincinnati, Kaufman said, his paper pursued the histories of all the principals, everything from viewing high school yearbooks to paging through priest directories. Reporters had to become instant experts on false memory and recovered memory. "I don't know if there was a rush to judgment," Kaufman observed. "There was a rush to cover." Kaufman conceded that in any rush to cover, harm can result, but he distinguished between justifiable harm and unjustifiable harm. In this case, Kaufman concluded, the coverage was competent and the harm to Bernardin justifiable.
Larry Yellen, the television reporter for WFLD-TV, Chicago, who as a producer at WLS-TV, Chicago, broke the story that Cook had recalled abuse by a priest eight years earlier, agreed. In agreeing, however, he posed a troubling question. In the rush to cover, why is it that news people who have known Bernardin for years will take a wire service bulletin stating that a suit was filed, or confirmation from the archdiocese that it will be filed, and immediately lead a newscast with a story that essentially says Bernardin may be a sexual pervert of some sort?
The answer for Yellen is that in contrast to Rubino's perspective that the lawsuit belongs to the client, journalists are taught that the lawsuit belongs to the public. The public is to be made aware of the allegations and the denials as they proceed. "It's our job to see if it's newsworthy, and of course in the case of a cardinal, it is," Yellen said. "Then in the months after, it's our job to sort out the facts." Yellen noted that the dilemma is exacerbated because of the relative ease with which one can file a civil suit. But reporters can be discerning, Yellen said, in separating themselves from Anderson's statement that it is not a journalist's job to decide what to believe. Indexes of reliability help a reporter determine how to distinguish the crackpot from the bona fide accuser. The trouble was that in the Bernardin case, Yellen concluded, the suit had some of those appearances of reliability: the case was filed by a well-known lawyer, and CNN, a respected network, was playing up the story.
Jason Berry, author of Lead Us Not Into Temptation: Catholic Priests and the Sexual Abuse of Children, questioned the implicit assumption that the news media erred in giving the story the extensive play it received. He noted that two stories were going on simultaneously, one about Bernardin, the other about Harsham, and that the allegations about Harsham were substantiated and the case settled. The first reinforces the perception that the church has been bashed by the media for years, the second underscores the problem that the church has been involved in "one sleazy cover-up after another."
Callaway reflected that this larger context may have presented a dilemma for the Chicago media; that if a news organization did not report on the case, it would appear to be in the archdiocese's pocket. Crawford Greenburg argued that one cannot seriously suggest that the media should not cover a lawsuit that members of the public could read for themselves if they walked into the courthouse. She said the act of filing a suit should not be understated. A client must still convince a lawyer to file suit; the lawyer must still be able to frame the allegations as a cause of action for which a remedy exists; there are Rule 11 sanctions in place for filing a frivolous suit; and in contingent fee cases such as this one, a lawyer will not get paid if the claim is meritless.
Both Kaufman and Lehmann added that the phenomenon of sexual abuse, in the Catholic Church and elsewhere, made it incumbent on journalists to air such allegations once filed, or they would open themselves up to charges of being sycophants and shills for the archdiocese.
Callaway observed that Cardinal Bernardin's original news conference first left the impression of a feeding frenzy, but then his candor immediately turned public sentiment in his favor. O'Malley agreed and said that Bernardin's decision to publicly and categorically deny the allegations was made within minutes of reading the allegations against him for the first time.
Ahern recalled that reporters had followed the cardinal everywhere during the following week and that at each opportunity he stopped and spoke to them. That is in sharp contrast, she noted, to the secrecy and slowness with which the archdiocese handles allegations against priests. Berry agreed, and suggested that the cardinal practices his openness with the media in a fairly selective way. Callaway then turned to a videotape of an exclusive report by WLS-TV on November 18, 1993, one week after the story broke. The report, by Chuck Goudie, characterized the lawsuit as being "very much in jeopardy" because documents discovered in Philadelphia undermined Cook's contention that he had repressed the memories of abuse until recently. A court file of an 8-year-old criminal drug case against Cook included a statement in Cook's own handwriting indicating that he recalled then that a couple of priests had sexually abused him when he was 16 years old. At the end of the report, Goudie posed two questions: "If Cook knew about it all that time, what was it that caused him to file the suit just a week ago? And why would he throw Cardinal Bernardin's name in at the last minute?"
Rubino conceded that the report had helped him raise some pointed questions with his client. Crawford Greenburg then referred to other stories the Tribune ran that cast the lawsuit in doubt because of questions relating to the statute of limitations and to the admissibility of testimony recalled under hypnosis.
In summarizing, Callaway noted that the apparent consensus among the panelists was that the media had had no choice but to cover the filing of the suit, that sealing such suits should not be done to protect the accused, that a feeding frenzy did not occur, and that the news media did some impressive investigative reporting that may have helped the case come to a speedier resolution.
Mark VanderLaan, a Cincinnati attorney who represented the archdiocese in the civil suit, observed that the suit should never have been filed, but beyond that he considered the news coverage balanced and as strong in reporting on Bernardin's vindication as on the initial allegations against him. Yet he would not cite this case to show that the system necessarily works. He noted that a less revered person would not have had the opportunities Bernardin had to exonerate himself, and that even in this case, people ended up damaged in the process of public exposure.
Anderson disagreed with Callaway's generalization that a feeding frenzy had not occurred. "How else does one explain 200 reporters camping out on Steven Cook's front yard?" she asked. But she was hard pressed to derive any guidance for the future. She eliminated such possibilities as not reporting on civil suits or not giving a voice to the alleged victim. She defended her portrayal of a sobbing Cook and asked that CNN's coverage not be judged by the ultimate outcome of the case. She defended her choice of the words "fallen from grace" in the documentary by pointing out that the context was to say that new allegations were charging that the cardinal had fallen from grace.
Crawford Greenburg made two concluding points. She said that it is the responsibility of the news media both to report civil allegations and to ferret out information while the case is pending. She also stated that in this case, Bernardin was given a prominent public forum and the kind of vindication he needed and deserved. Although she conceded that Bernardin's reputation had nevertheless been damaged, she observed that he probably suffered less than most other accused people would have suffered. Maybe President Clinton will have a similar say in the allegations against him by Paula Jones, but both will have more say than a school teacher similarly accused of sexual abuse.
Kaufman raised the alternative, the case in Ontario where prohibitions on publishing information about a murder case in Canada are forcing information underground. "The presumption should be to publish when there's a public act," he concluded.
Yellen said that the issue is not whether there is or should be a feeding frenzy, but how to direct your energy in such cases. "I think that feeding frenzy is a fine thing if you direct your resources towards learning more and informing the public about the individuals involved and not just camping out outside somebody's house," said Yellen.
Lehmann asked if the coverage was fair to the cardinal. He said that when the cardinal dies, the case will be mentioned in his obituary. Could the news coverage have changed that? "I don't think so," he concluded.
O'Malley refocused attention on the lawyer's role. Though he said that Bernardin decided not to seek sanctions in this case, O'Malley noted that the legal profession is obliged to evaluate sensitive cases critically before they are filed and before they become a media issue.
Clohessy observed that both the Chicago and national media bent over backward to be fair to the cardinal. He predicts an unfortunate result of the case will be that victims of abuse by clergy will have a more difficult time getting media attention.
Berry added that if the media had failed, it was not in the Bernardin case, but in ignoring the Machiavellian tactics the archdiocese under Bernardin has used to transfer quietly priests accused of sexual abuse.