Smolla asked the panel to consider the obligations of individuals and institutions who are confronted with allegations as inflammatory as sexual abuse and of the counselors who first hear of the abuse; of the lawyers in a position to decide what kind of a case exists and where the truth lies; of the judges and other actors in the judicial arena; and of the journalists as they make credibility choices and decide how to balance, place, package, and promote a story. What do you say when a person comes to you and says, "I have a terrible story to tell you"?
Jeanne Miller, founder and Executive Director of The Linkup, a national network for victims of abuse by clergy, said that through her experience with 4,000 victims across the country she has found that their primary instinct is to turn to the church for consolation and resolution and that the motivation is to protect children and ensure that the abuse never happens again to anyone else. Her son was one of four boys abused by a priest during an outing. She was told of the incident by one of the parents, and initially she went about trying to disprove the allegations. She was greeted by a defensive archdiocesan personnel board and a priest who threatened to sue her and rough up her child.
Jeffrey Anderson, a Saint Paul attorney who has gained a national reputation for representing plaintiffs alleging sexual abuse by clergy, said that it is quite common for institutions like the Catholic Church to react the way our culture reacts, that is, to deny. "And it is a dimension of denial that has perpetuated the liability crisis the Catholic Church suffers in America today," Anderson said.
The Reverend Sherman Hicks, Bishop of the Metropolitan Chicago Synod of the Evangelical Lutheran Church in America, said that it is also that the church does not know what to do. At the very least, the church must have policies in place so practices are not left up to the arbitrariness of individuals.
Judge Frank McGarr, former Chief Judge of the Northern District of Illinois, now counsel to Pope, Cahill & Devine, said the archdiocese now has policies in place that include teams of specialists who advise people to hire private counsel to try to get to the truth of the matter.
Smolla probed whether resorting to legal counsel is necessarily a positive step when the first instinct seemed to be to get satisfaction from within the institution. Sister Carolyn Farrell, Associate Vice-President of Loyola University for Mundelein College and former Mayor of Dubuque, Iowa, said it is critical to get it out in the open, to break the silence. She noted that research is beginning to show that women sexually abused as children would tend to choose one of two paths, prostitution or the convent.
McGarr clarified that he did not mean to suggest that counsel by a lawyer should lead to litigation. He meant that because such allegations put the case into an adversarial posture, it would be unfair to deal with an individual without reservation. In fact, he would suggest that the better resolution is not litigation, in part because it is a public forum. McGarr said he was highly critical of the way in which Rubino, representing Cook, felt he had to go to court and to the media and engineer a case for maximum publicity value. He said that even in a case in which abuse was found to have occurred, and the abuser was in some way punished, it would be preferable for the case to be resolved quietly, without public exposure.
Miller recalled her situation in 1981, at which time no one even considered raising allegations of sexual misconduct by a priest. Her demands of the church were that the children receive counseling and that the priest be restricted from the ministry until his problem was resolved. After six months of no satisfaction, she filed suit. It attracted only the slightest coverage, but enough coverage for other people to report other incidents of abuse by the same priest and by others around the country. It was not until 1985, Miller estimated, that the media began to pick up on the problem and the church began to respond.
Without litigation and, in turn, media attention, Anderson said the reality of sexual abuse would not have been exposed.
James Wall, Editor of the Christian Century, whose op-ed piece called the news coverage of the repressed memory phenomenon in the Bernardin case reprehensible, said that the problem is not so much one endemic to the Catholic Church, but one of the use of power over the vulnerable, whatever the context.
Anderson said that his obligation as a lawyer is to appreciate the gravity of what his client tells him, which includes interviewing the client thoroughly and investigating the truth of the allegations he hears. The difficulty in sexual abuse cases is that it is typically committed in secrecy, with no hard physical evidence. Part of the investigation to corroborate information is to find other victims.
Father George Clements, former pastor of Holy Angels Church, where his successor was accused publicly of sexual abuse, said we have gone from one extreme to the other, from the institutional cover-up to the broad brush where you are guilty until proven innocent. He hears of priests who are afraid to go about their normal work in fear that they could be accused falsely and have their reputations ruined.
Thomas Merrill, Professor at Northwestern's School of Law and former Deputy Solicitor General of the United States, wondered whether lawyers may be the only actors over which society, acting through law, can obtain an effective hold or point of pressure. A plaintiff, here one with a terminal illness, is often judgment-proof and not effectively deterrable through sanctions. The news media, with the weight of the First Amendment behind them, are not deterrable because orders sealing information from them or impositions of expanded legal liability on them are not likely or advisable. The remaining actor is the lawyer acting as gatekeeper, and the lawyer is deterrable through Rule 11 sanctions.
Thomas Scorza, former Assistant U.S. Attorney whose op-ed piece in the Wall Street Journal criticized the filing of the Bernardin suit, agreed. He argued that from everything Rubino had said during the first panel, the suit was frivolous and open to sanctions because a plaintiff's attorney could not reasonably have thought before filing suit that he could prevail in the case. But he added that such sanctions are no deterrent, because attorney disciplinary mechanisms are lax.
McGarr agreed, but noted that a lawyer is in a difficult situation because after making a good faith effort to decide if the case is proper, the lawyer has a duty to go forward with it. Smolla then asked Scorza how he could be so sure that the case was frivolous. Scorza said that the plaintiff, even one evoking sympathy as Cook would, would be open to credibility attacks directed at the hypnotic recall and would not be able to overcome the singular believability of a cardinal on the other side.
As for the inclusion of the media, Anderson said that a case has a different dimension when one of the parties is a public figure. Although a lawyer still has to have competent evidence to go forward against a public figure defendant, the lawyer recognizes that the suit will become widely known. It is not a question of whether it is appropriate to seek out media coverage, said Anderson. "It's going to be public unless you make the decision to keep it private, and that is an option lawyers have and sometimes utilize."
McGarr vehemently disagreed, arguing that seeking out media attention is totally inappropriate. He said that the media should have no role in the administration of justice, and he considered it wrong for attorneys in the Bernardin case to have gone to CNN and used the bishops' conference to manipulate the justice system.
Anthony Lewis, a columnist for the New York Times and twice winner of the Pulitzer Prize, said he agreed in principle with McGarr but cautioned that the sentiment is unrealistic. He cited a recent New York Times book review by University of Chicago Law Professor Cass Sunstein that referred to "sensation mongering populism," and said that stopping either lawyers or journalists from sensation mongering is impossible. Miller countered that whether a lawsuit is filed or not, the public has a right to know of allegations of wrongdoing against public figures. Lewis continued that a lawsuit itself, with a minimal $120 filing fee, does virtually nothing to enhance the credibility of allegations, particularly those based on recovered memory. He argued that it is incumbent on the news media to at least say, "This is a piece of paper. Nothing has been proved. It is called a lawsuit, but that adds [to] it no dignity, really."
Smolla introduced the example of the Paula Jones sex harassment suit against President Clinton, suggesting that the filing of the suit itself prompted news organizations to make it a front page story. Lewis agreed, saying that the New York Times, for one, declined to cover the allegations until the suit was filed, at which point the Times covered it in full.
Smolla asked if the only change resulting from the filing of the suit was that the news media were immunized from liability for libel if they accurately reported what was alleged in the civil complaint. Lewis added that there is some confusion between a criminal prosecution and a civil action. A criminal case begins after a winnowing process by prosecutors or a grand jury; a civil suit has no such check.
Mark Toney, Director of News for WBBM-TV, Chicago, offered that it is becoming more frightening all the time from the news editor's perspective because newsrooms tend to treat the filing of a legal piece of paper with a legitimacy they would not give the circumstances otherwise.
John McCarron, a Chicago Tribune editorial page writer whose column questioned how the news media report civil allegations, noted the recent proliferation in the coverage of civil suits because the suits are filed to address societal problems. The enormous legal opportunities to file official paper, McCarron said, then legitimize the news coverage. That being the case, Smolla asked, how can journalists not give filings against public figures substantial coverage?
Wall suggested that it is not the coverage, but the manner of the coverage that is at issue. He said CNN's coverage that linked the filing of the suit to the prepackaged "Fall from Grace" documentary effectively stated, not merely alleged, that Bernardin had fallen from grace, and he called that "reprehensible."
Miller observed that the title was appropriate because the documentary was not strictly about Bernardin, but about the many cases of sexual abuse by clergy. Hicks added that the title was inappropriate theologically because grace is something between God and the individual. Wall suggested that a better title might have been "Tarnished Collar."
Smolla observed that one problem in the Bernardin case may be that we have become so accustomed to a public figure categorically denying an accusation that when the person does just that, it still seems viscerally as if the person were in trouble. Wall distinguished between Chicago audiences and national audiences. Viewers in Chicago knew the accusations against Bernardin were probably not true, but the viewers who did not know Bernardin might have felt that if he was denying it, he could not be believed.
Scorza agreed, referring back to the morning session in which Anderson felt her choice of wording in the CNN pieces appeared balanced and was perfectly defensible. "But there's a pre-existing grid in our minds about the fall of the high," Scorza said. He argued that because the press is speaking into a world in which people are accustomed to stories of the powerful having clay feet, the press is obliged to be aware that they are playing into that pre-existing grid. He cited the murder of Michael Jordan's father and noted that during the short time before two young men were charged, there was speculation that the murder may have been connected with Jordan's gambling.
In conclusion, Smolla asked if consensus existed on two propositions, the first, that the news coverage of the Bernardin affair was in balance exemplary because the case was reported aggressively and the truth ultimately prevailed. McCarron agreed, but only if one accepted that little harm occurred from the page-one publication of the allegations in the first place. Wall noted that the real grid we are operating in is the "infotainment" grid. The second proposition was that celebrity cases should not be treated differently. Wall disagreed with that. He said the issue is not celebrity status but people who become vulnerable because they are in the helping professions. For such people, which include school teachers as well as priests, a rule should exist that allows some amount of secrecy in the due process until a charge is validated. Smolla noted that such a model exists in most states in the limited arena of judicial misconduct.
Lewis agreed that the coverage may have been admirable once the story got rolling, but he questioned the notion that it is not a journalist's business to determine the truth. He compared that attitude to the Tom Lehrer satire on nuclear missiles: "'I shoot them up, I don't know where they come down, it's not my department,' said Werner von Braun."