By Kelly Clark
September 2010

Read here: Oregon sex-literature laws ruled unconstitutional

This is what I meant when I said, in a 2008 debate with the ACLU’c Charlie Hinkle at the City Club that we in Oregon have "too much free speech." When we cannot pass common-sense laws aimed at protecting children because of wholly abstract "free speech" limits, then we have "too much free speech," and judges run a risk of so alienating the public, so separating the "constitutional sense" from the "common sense" of the people, that both the courts and the constitution will lose legitimacy with the average citizen.

My full comments can be found at here.

By Kelly Clark
September 13, 2010

"However, it is the scandal over paedophile priests that will plague the Pope throughout his visit.

…"But while the Pope has expressed contrition over the revelations, even senior Catholics in Britain believe the Vatican has not handled its response to the crisis well.

‘The Vatican has got itself into a very defensive position, which probably inhibits the positive initiatives we could be taking,’ Vincent Nichols, Archbishop of Westminster, said recently. ‘The Holy See can do a lot better in its understanding of how the media perceive things and how important those perceptions are.’

…"The Vatican‘s attitude appears to remain one of minimising the wave of criticism focused on Pope Benedict’s handling of the crisis over paedophile priests. Complaints were ‘excessive amplifications’ with ‘an echo superior to that which is the true sensitivity of the population’, Federico Lombardi, spokesman for the Vatican, said on Friday."

–Financial Times, Sept 13, 2010.

"Excessive amplifications?"  Really?  Really.   Compare this response, so typical of the Vatican, with that of the Belgian Church in today’s NYT– which really seems to get that the abuse scandals there are a very big deal and must be dealt with in an upfront and uncompromising way.  See article here.

Tragically, the American Church’s response has been and continues to be closer to that of the Vatican than that of Belgium.

It didn’t have to be this way. Way back in the mid-1980′s, after the cases involving Fr Gil Gauthe of Louisiana came to light, the National Bishops Conference commissioned a study by three men whom they trusted as being experts in the field, one of whom was a young priest and canon lawyer, then in the Washington DC Vatican embassy, with an obviously bright future, Fr Thomas Doyle.  The study came back with an unpopular conclusion: the Church has a major child abuse problem on its hands, and, unless the Church comes forward quickly and aggressively to acknowledge it, seek out the victims and get them help, the Church could be facing huge liability. How huge?  Perhaps as much as a HALF A BILLION DOLLARS in liability, the study concluded.

Well, the report was shelved, and Doyle’s bright career was derailed.  (He ended up as a longtime priest in the Air Force, and has become the leading priest expert in the nation on the abuse problem, testifying hundreds of times for victims in court and depositions. He is one of the most spiritually courageous men I know.)

But fast forward twenty years, and the American Church has been badly damaged by their own failure to do the right thing back in 1985.  SEVERAL Billions of dollars paid out in judgments and settlements– just in the US– plus several dioceses bankrupt, a Cardinal from Boston forced to resign, and the image of the Church in tatters. 

All because the Bishops thought the Doyle report was–to borrow from the words of Fr Lombardi above–"excessive amplifications."

An Open Letter to Youth Organizations, Churches, and Schools.
By Kelly Clark
September 1, 2010

After six weeks of trial against the Boy Scouts of America—resulting in, as far as I know, the largest child abuse verdict in American history on behalf of one plaintiff—I am being asked repeatedly to blog about the lessons from the trial.  There are of course many, and some of the most important have to do with Kerry Lewis, my client and now friend, who stood so courageously and told his story so clearly.  But the lessons from the other end of the evidence—about what happens when good youth organizations forget their first principles and react to allegations of child abuse by keeping secrets—is what I want to write about first. So here is an open letter to youth organizations; here is what I hope they learn:

Dear Youth Organization:

I write this to you because you have taken on the great task of working with children.  Whether you are a school, a church, an athletic league, a dance company or a day care center, whether you are a public or private entity, whether you are a new organization or have been around for decades, you are doing good work. You are helping our young people to grow up, and you are doing your best. No doubt.  So I respectfully offer some of the lessons of the long trial in Portland, Oregon against the Boy Scouts.  Please learn these lessons, so that kids will be safe and so that you don’t make the same mistakes that too many other youth organizations have made.

So, while it is all fresh in our minds, let’s consider the lessons from this trial against the Boy Scouts of America – once America’s most trusted youth organization – as the evidence came in to a very attentive and unusually well-educated jury:

1.  You Cannot Keep Secrets About Hidden Dangers to Children.

Youth organizations must do everything feasible to protect children, and cannot keep secrets about hidden dangers to children.”  This simple theme was the foundation for our entire case. It seemed to us—my co-counsel Paul Mones and I– to be a fair and general principle to which any youth organization would agree.  We had planned to go from that principle to showing that BSA had not adhered to the common sense rules.   Yet numerous times during the trial we were stunned to hear witnesses for the BSA who would refuse to acknowledge this basic idea. Not refuse to acknowledge that the BSA violated this idea– we expected that.  But refuse to acknowledge the basic principle itself!   The message given to the jury by such quibbling was that the BSA was playing word games and putting qualifiers on the question of safety to children. 

The fact is, the BSA has known for decades that it had a serious child abuse problem. They kept interior confidential files on the problem since the 1920’s, and certainly by the 1950’s and 60’s knew that the thousands of files (the evidence was that by 1985 the BSA had at least 3000- 4000 pedophile files)—representing thousands or tens of thousands of children abused–  meant that their program was being targeted by pedophiles. 

Yet, the BSA still refused to admit in open court the very obvious truth that it had, and has, a child abuse problem.  Several key witnesses repeatedly argued about or qualified the simple phrase “problem” in response to direct questions. It was like listening to an alcoholic or addict refuse to admit that he or she “has a problem” and needs help, when everyone around sees the chaos and insanity of substance addiction.  The jury saw this fierce and calculated denial of the problem, and quite apparently did not like it.

So the message is simple: youth organizations cannot keep secrets about hidden dangers to children. Parents and the community have a right to know if there is a risk to children.  You would give a clear warning about food poisoning among your kids, or about a dangerous crosswalk near your building.  The fact that your warning might have to be about an embarrassing problem with child abuse within your organization does not change the obligation to warn. Not even for the esteemed Boy Scouts of America.  That is one of the key lessons of this trial.

2. As your knowledge increases, so does your responsibility. 

Oregon law, as is true of the law in most states—as well as common sense– says that whether a person acted “reasonably” under the circumstances depends upon what the person knew about the dangers at issue.  A seaside hotel owner who knows that people regularly get caught in dangerous ocean undertows right in front of the hotel has a different obligation to warn guests than that same hotel owner might have to warn about a freak and unforeseeable storm.  It is just common sense.  So, as the BSA over the years and decades gathered its knowledge about the pedophile problem within Scouting, it was no longer good enough simply to keep a list of the pedophiles so they could not come back into the organization.  At some point, the BSA had an obligation to take and use that information to make the organization safer. If the BSA headquarters had been filled with $100 bills instead of the names of little boys, and 4000 times over a 5 decade period thieves had broken in to steal money, the BSA would not simply have kept a list of the thieves to prevent them from getting into the building. The BSA would have changed its security systems to prevent new thieves from getting in!  That simple analogy perfectly describes the BSA’s response to its child abuse problem.

So the second lesson for youth organizations from the BSA trial is painfully obvious– as your knowledge increases so does your responsibility.  Is it a good thing to keep data about your safety issues?  Of course. Is it smart to make sure that a known pedophile cannot get back into your organization?  Obviously.  But that, in and of itself, is not enough to fulfill your duty to protect children.  You must look at what changes are necessary to make the organization safer.

3. You must always put the safety of children ahead of the interests of the organization.

If there is a common thread that I have seen in advocating for child abuse victims against a variety of institutions of trust—churches, schools, foster care agencies, and now the BSA—it is this:  there seems to be an idea that the work of the organization is so important, its goals so noble, that there might be times when it is necessary to “keep a lid on this problem.”  This, of course, is the misguided historical response that produced the ongoing scandals in the Catholic Church.  But it goes way beyond that particular institution of trust.  So many youth organizations have great goals and purposes.  They do good work. They help children and help the community.  And so, when trouble comes along, their first instinct is to protect the work. And if this means keeping a potentially embarrassing problem quiet—even at the risk of keeping secrets about child abuse—they reactively take that route.  While that may be an understandable reaction, it is always disastrous, sooner or later.  The old idea that “the ends justify the means” can never apply to a sluggish response to child abuse, and too many good organizations fall prey to the temptation to protect the organization.   The safety of children, and whatever it takes to accomplish that—including blaring trumpet warnings if that is necessary—must always take precedence over the reputation of the organization.  That is lesson 3 from the BSA trial.

4. When it goes bad, accept responsibility and apologize.

It is a timeless truth that runs through all societies at all times and places, but especially through the religions and ethical systems of Western culture: apologies heal.  This truth is central to our legal system as well, even to the point that it is an expectation in the criminal justice system that someone who is found to have broken the community’s rules will apologize—in part, at least because we understand that it will be helpful for the victim.  But it is not limited to the criminal justice courts: we expect apologies from those who have harmed others, and those who have knowingly failed to protect those in their care—especially institutions of trust such as churches, schools and youth organizations like the Boy Scouts. 

And all this is especially true for victims of child sexual abuse, who so often believe that, somehow the abuse was their fault, that they should have done something to stop it, or they should have immediately told someone—all beliefs which the mental health professionals tell us are almost universal in child abuse victims.  So when they receive an acknowledgement of responsibility and a sincere apology from those responsible for their abuse— the perpetrator of the abuse, an institution that could have prevented the abuse, or both—it is incredibly healing and empowering.  Suddenly, in one moment, the survivor realizes that his or her core beliefs about this life-altering event—“it was my fault; I am fundamentally flawed because of what I did and did not do about this”—are all wrong, and that the person or institution who is factually and morally responsible for the abuse is owning up to what happened. The weight and burden of this wrong, which has been on the shoulders of the victim for so many years or even decades, is lifted off of the victim and placed where it belongs.

This is such basic common sense and human experience that it is hard to understand why institutions of trust—such as the Boy Scouts, the Catholic Church, and others— are so reluctant to make this simple and profound gesture.  Of course, it involves the acceptance of responsibility, and too often that acceptance is slow to come for an organization that prides itself on the nobility of its purpose. It is, after all, hard for someone who thinks he is a hero, or divinely inspired, to admit that he failed utterly in one of his prime responsibilities and is now being called to account for it.  We have seen this for at least a decade in watching the Catholic Church come to grips with the magnitude of its child abuse problem—to accept that it even had a particular problem, to acknowledge that the Church badly failed in its historic response to that problem, and to make unequivocal apologies to those who were damaged by those failures. 

This same dynamic of denial seems to be true for the BSA—which, apart from the specific facts of this case in Portland, continues to deny publicly that it has historically had a serious child abuse problem—different both in type and frequency from that in society at large.  Not once during the decades that we have litigated against the BSA, in dozens of cases, whether settled or tried to a jury,  has the BSA offered even a simple apology to any of our clients.  And we know of no circumstance in which the BSA ever has issued an apology to the thousands of boys who were abused by Scout leaders.

I want to say in conclusion, again, that the Boy Scouts of America is a great organization. Our boys need good, strong role models to learn the art and habits of living an honorable life as they move into manhood.  Lord knows our society needs more young men of integrity, purpose and faith.  BSA is in a position as it enters its second century to play a unique role in shaping young men.  It is an awesome responsibility.  We can only hope that the leadership of this organization steps back, moves past the shock and shame of a jury’s stern rebuke, and takes stock of what is truly all about.  If it does, then it can move to reclaim society’s trust and admiration. If it does not, if it continues to shoot the messengers—lawyers, plaintiffs, juries, the news media– then it will lose its credibility, it will become a shell of what it once was and again could be, and it will eventually slide into irrelevance.

by Timothy Lytton
December 7, 2009
Huffington Post

News Coverage of Cardinal Edward M. Egan’s cover up of clergy sexual abuse in the 1990s while he was the bishop of Bridgeport would be shocking if it weren’t so familiar. The list of high ranking Catholic Church officials who failed to report credible allegations of child sexual abuse by priests to law enforcement includes the most prominent prelates of this generation: Cardinal Joseph Bernadin in Chicago, Cardinal Bernard Law in Boston, Cardinal Anthony Bevilacqua in Philadelphia, and Cardinal Roger Mahony in Los Angeles.

The Egan case does, however, highlight one feature of this ongoing scandal that is frequently overlooked: the role that civil lawsuits have played in uncovering most of what we know about clergy sexual abuse in the Catholic Church and in motivating Church officials to address the problem.

To begin with, plaintiffs’ have lawyers compelled Church officials to produce secret files concerning abuse allegations and to provide sworn testimony about their own failures to adequately address the problem. Media reports about Cardinal Egan’s failures in Bridgeport are based on more than 12,000 pages of memos, church records, and testimony from 23 lawsuits against the diocese. Indeed, most media coverage of the scandal–dating back to the early 1980s–has been based on these types of litigation documents.

Civil lawsuits have also shaped our understanding of the clergy sexual abuse scandal as an institutional failure on the part of Church leaders. Throughout the scandal, some within the Church have attempted to focus attention exclusively on the perpetrators, suggesting that clergy sexual abuse is merely a matter of "a few bad apples." Others have argued that the whole matter has been blown out of proportion by plaintiffs’ lawyers and their clients seeking to make money off of the scandal by filing lawsuits. One also frequently hears suggestions that news coverage of the scandal is motivated by anti-Catholic media bias. Indeed, Cardinal Egan’s successor, Archbishop Timothy Dolan leveled this very accusation against the New York Times this fall.

By contrast, civil lawsuits have focused attention on the failures of Church officials. Plaintiffs’ lawyers sue large institutional defendants because they are better able to pay large settlements and judgments, and so clergy sexual abuse lawsuits have emphasized the failure of diocesan officials–especially bishops–to protect children from known abusers.

Media coverage of the scandal has been heavily influenced by this framing of clergy sexual abuse as an institutional failure on the part of Church officials. Litigation and trials have traditionally provided the type of drama that makes them attractive to journalists seeking to draw in readers. In addition, documents filed in court and sworn testimony provide the kind of credible sources of information that journalists like to rely upon.

By framing clergy sexual abuse as a problem of institutional failure on the part of Church officials, civil lawsuits have also motivated dioceses around the country to institute new programs to prevent sexual abuse before it occurs and to report credible allegations of sexual abuse when it does happen. The U.S. Conference of Catholic Bishops reports that over 90 percent of dioceses have instituted such programs and have trained over 7 million people in preventing, investigating, and reporting child sexual abuse.

It is inconceivable that so many U.S. bishops would have instituted such ambitious efforts to address clergy sexual abuse in the absence of the intense media coverage and public attention generated by civil lawsuits–not to mention the liability exposure.

It has been 25 years since the first civil lawsuits were filed against Catholic Church officials for clergy sexual abuse, and much progress has been made as a result of them. That leading prelates such as Cardinal Egan are still fighting so hard to hide the record of their misdeeds indicates that there is more work to be done and that civil lawsuits against Church officials may still have a role in uncovering the truth, highlighting the misdeeds of officials, and providing much needed pressure for reform.

www.NPR.org
By Frank James

French ‘Minister of Culture’ Frederic Mitterrand Finds Childhood Sexual Abuse Still Not Acceptable—Even to ‘Sophisticated’ European Morals.

By Kelly Clark, Child Sexual Abuse Attorney
Portland, Ore.

American political junkies often use a phrase to describe a politician’s secure standing with the electorate: “He’s a shoe-in—that is, unless he gets caught sleeping with a dead woman or a live boy.”   In other words,  Senator Bulbousnose will surely win, unless, that is, he steps across the unspoken final lines of decency we all know about—necrophilia and pedophilia being two  of them.

So, there are two things that amaze me about the unfolding scandal in France: first, that the Minister of Culture, Frederic Mitterrand, would think that his lurid book accounts of “paying for boys” in Thailand could fly under the radar and not matter to his public career; and, second, that it almost did.

In case you haven’t read about this unbelievable story, here is a quote from the Times Online, dateline October 8:

“President Sarkozy’s new Culture Minister, Frédéric Mitterrand, was struggling to save his name and possibly his job last night amid a storm over his past accounts of paying “boys” for sex. The nephew of the late President Mitterrand, who is openly gay, was thrown on the defensive after opposition politicians homed in on a memoir in which he described his delight in visiting brothels in Bangkok.

“I got into the habit of paying for boys … The profusion of young, very attractive and immediately available boys put me in a state of desire that I no longer needed to restrain or hide,” he wrote. The autobiography, La mauvaise vie (The Bad Life), was a critically acclaimed bestseller in 2005 and Mr Mitterrand, 62, a popular television presenter, was praised for his honesty. It rebounded on him this week after he leapt to the defence of Roman Polanski, the filmmaker, who was arrested in Switzerland for extradition to face a Los Angeles court for having sex with a girl aged 13.”

Now, let’s ignore the obvious about-face he has done in the last day or so, trying to play down what he has written. After all denying the obvious is what politicians do– although trying to say that admitting that he paid for sex with boys doesn’t mean that he paid for sex with boys may set a new standard.

No, I want to ponder the two aspects of all this that I mentioned above.  First, how did someone who wrote this—in 2005—get  appointed to a high post in a European government?  Surely he did not think no one would notice: he is, after all, the highly visible nephew of former President Francios Mitterrand and a TV personality in his own right.  No, it seems he was doing what a lot of celebrities do, which is to write a lurid autobiography “revealing all” to boost sales through shock value.  Surely he intended the world to know that he was tantalized and hooked by the Asian sex trade. He wanted people to know…

No, what is amazing to me is that he thought that this admission would shock people in no different way than, say, talking about drunken nights on the town or lurid sexual escapades of the kind we have grown used to with celebrities.  But that  he thought he could just cruise on in as Minster for Culture—that’s so rich in irony I can’t even know where to start— after admitting to deep-seated pedophilic behaviour is just stupefying. I don’t know whether this says more about the man’s flawed political judgment,  or about how far Western standards for decency have fallen.  After all, let’s not forget, that this book was published 4 years ago and up til now there had been no blow up.   He actually thought he could get away with it.

This brings me to the second source of amazement—he almost did. In fact, had it not been for the controversy over Switzerland’s arrest and the US’s extradition demands of filmmaker Roman Polanski for sexually abusing a 13 year old girl, we old-fashioned types in the US might not ever have heard about Mitterrand’s pedophilia.  But the fact that Europe heard about it and there was no uproar for nearly five years surely says something fundamental about the way those ‘sophisticated’ societies think (the condemnation by the avant garde of the US in fashionable circles for Polanski’s arrest is no less indicative).  Is it really okay for a major public personality now become public minister to have engaged in pedophilia?  Note that there is no indication that he has acknowledged in sorrow the wrongness of his behavior, sought help, amended his way of life.  This is not a story about a guy who couldn’t find forgiveness when he asked for it. This is about a guy who didn’t—apparently didn’t—even realize that what he had done was fundamentally wrong… even by the standards of Senator Bulbousnose… even by standards of European ‘sophistication.’  

Boy—no pun intended—did Mitterand get the surprise of his life. There are still some things that politicians, even in Europe,  can’t do. Thank God.

www.OregonLive.com

by Paul Mones, guest opinion
Tuesday June 02, 2009, 8:30 AM

Our state legislators are in the midst of dealing with one of the worst fiscal crises in recent memory. No doubt they will have to make many tough, unpopular decisions this year. However there is one legislative decision they need not fret over because it is a no-brainer. House Bill 2827 is a simple piece of legislation that gives an extra measure of justice to victims of child abuse.

In the words of one of the bill’s co-sponsors Chris Garrett (D-Lake Oswego ) – the other sponsor is Rep. Andy Olson (R-Albany) – this bill "will ensure an effective civil remedy for victims of child abuse."

The bill extends the present statute of limitations by giving victims until the age of 40 to file an action against their abuser, requiring that claims be initiated by the time the victim turns 40 years old or within five years of when the injury or the connection between the abuse and the injury is discovered. The bill has unanimously passed the house but curiously has not received the same overwhelmingly positive reception in the Senate.

The extension of the statute of limitations makes common sense because it recognizes that most child victims of sexual abuse cannot confront their debilitating problems until they are mature adults. Moreover, most victims can’t even make the connection between the abuse and their psychological problems until they have some real distance from the time period of their abuse.

Child abuse is the perfect crime because its victims are too powerless, too confused to help themselves when they are actually being abused. These children travel quietly through their days interacting with teachers and passing police officers, friends and neighbors, never revealing the anguish of their existences. And if by chance someone asks them how they are being treated at home their responses will be uniformly the same: OK.

As adults we expect all human beings to escape or at least want to escape when someone injures them, but for victims of abuse, the reverse occurs. And that is in fact perhaps one of the most insidious aspects of child abuse: It binds the child closer to the abuser. The abuser’s threats and intimidation engender in the child not only fear but self-blame and embarrassment – all of which turns a child’s survival mechanisms topsy-turvy. Emotional attachment and sexual violence become so inextricably confused that even when the abuse is reported, the child will often kick and scream as they are being removed from their draconian environment by a social worker.

The other aspect that makes child abuse a perfect crime is that most adults continue to believe that child-rearing is a private matter. They don’t want a relative, friend or neighbor telling them how to raise their child so they won’t intervene in someone else’s family. While we all cherish our right to privacy, our devotion to this cornerstone of democracy is strangling the lives of thousands of children every year. Abusive parents and caretakers thrive on isolation and that is exactly what their relatives, friends and neighbors give them.

Daily, people turn a blind eye to the screams, bruises and frightened eyes of battered and molested children. Their reaction actively reinforces the offender’s omnipotence and tells the child you’re on your own, no one is going to help you. By powerful social training we are more likely to intervene on behalf of a dog being kicked by its owner than a child being mistreated by a parent. As Americans we routinely gawk at the suffering of car accident victims but we avert our eyes and ears when we see a child being backhanded in a supermarket.

It is often only when a child becomes a mature adult that he or she has the strength and emotional resources to confront the scourge of their past.

We have done much in Oregon over the past few years to protect victims of abuse, the most recent example being the passage of HB 2062, which will prevent schools from silently moving sexually abusive teachers one district to another. If the Senate saw fit just several weeks ago to join the House in ending the scandalous practice of allowing sexually abusive teachers from negotiating sweetheart deals with their school districts, then it surely should see the wisdom in HB 2062.

Paul Mones is an attorney and a children’s rights advocate.

Blog Author: Kelly Clark
Date: February 1, 2009 in Brainstorm NW

“I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution.”   -Thomas Jefferson

Big Government. Not since Ronald Reagan was President or Vic Atiyeh was Governor have Oregonians seen a concerted effort to stop the growth of government—and both of those honorable men failed in that task. And in the November elections– whatever else they did—the voters gave the Democrats the reins of government, unchecked even by a Republican chamber in national or state legislative halls. Now, it is no part of my purpose to discuss the political map. 

But one undoubted consequence of the elections is that Big Government will get bigger.  That is the way that Democrats (and, apparently, judging from recent years, Republicans, too) tackle big problems.  So, in an age of Big Government how do we protect our liberties?  There are really only three tools our constitutional structure has for this challenge: representative government—where the people can remonstrate against excesses of public power through their elected representatives; a free press—which, theoretically at least, can shine the light of day on abuse of power by government; and the jury system—through which those on the wrong end of the Big Government stick can seek to hold public agencies accountable.  It is this last, a potent jury system, that I believe needs to be defended, now more than ever.

Even before I became a trial lawyer, as a conservative I believed in the jury system. Then, over the past decades, as a conservative and a trial lawyer, I have seen time and again how large institutions are afraid to have their oppressive conduct proven to a jury. It does not really matter whether the institutions are private—banks, mega-corporations, insurance companies, or public—land use agencies, regulators, electoral bureaucracies.  All these institutions can and regularly do run over our liberties. Ask anyone who has been on the receiving end of Oregon’s land use system, or whose business has been shut down by an overzealous bureaucrat, or whose idea for a ballot measure has been drubbed into the ground because some elections official misused his or her power. All these citizens will tell you that, sometimes, their only hope for accountability and justice is to plow through the legal system to get the matter before a jury.

So I am always baffled when I hear conservatives talk as if the jury system was the invention of some liberal interest group, and needs to be weakened.  Why would we weaken it?  Because sometimes juries get it wrong?  Well, so what?  Is that any reason to take power away from one of the last remaining checks against public power?  If voters “get it wrong” in some election, the solution is not to take power away from the voters– though some liberals and elections officials seem to think so. No, the voters retain for themselves the right to be wrong: it is one of the risks of constitutional government. Or, if some political movement is patently offensive, even dangerous, to our ideals of life, do we pass a law that restricts its members’ ability to speak out? Of course not—at least we didn’t used to, before political incorrectness became a crime—for we believe in free speech, and we believe that in the marketplace of ideas, the true and wise ideas will eventually win out.So why is it any different when it comes to the jury system? I certainly do not argue that juries always get it right; our system cannot guarantee justice—but it does guarantee a chance at justice. And it is the knowledge of that “chance” that acts as a restraint on Big Government.

Some conservatives seem to trust the wisdom of the common man when it comes to self-government: free speech, free elections and the initiative system, but not when it comes to the jury system. On the other hand, many liberals seem to believe the average citizen perfectly capable of deciding even the most important legal case, but then they turn around and don’t trust that same citizen to wield the full power of the initiative, or even the vote—apparently believing that the people really are not smart enough, fair enough or wise enough to govern themselves. They-these conservatives and liberals-are elitists, all.

We must ask ourselves whether we really believe in the ability of free citizens to govern themselves.  If we do, then we need to keep our jury system strong. Make no mistake—Big Brother would love to see it weakened.  Then, not only will He continue to run roughshod over reluctant or captive legislative bodies, and not only can He keep seducing or manipulating our free press, but He will run over us, and the liberties of our families and our businesses as well. Indeed, He can do so with impunity, for He knows He will never have to answer to a jury of free citizens.

Blog Author: Kelly Clark, attorney
Date: August 3, 2008

No one was more hopeful than I, fifteen months ago at the conclusion of the bankruptcy of the Archdiocese of Portland. I believed– and I now see that I WANTED to believe– the promises of Archbishop John Vlazny, of his advisors and his lawyers. Those promises talked of treating victims of sexual abuse by priests with compassion. They offered hope that, in the future, the Archdiocese would be open and forthcoming about the records of past criminal conduct by pedophile priests and the bishops who covered up for them. Archbishop Vlazny himself led a mass of healing and reconciliation, again offering words of sorrow, repentance and new beginnings.

As I say, I believed these words. I stood shoulder to shoulder with the Archbishop and his lawyers, congratulated him on doing the right thing in resolving cases and in making the hard decisions to open the files of the past. See news articles here. I gave presentations and wrote articles on it all. See here. As a person of Christian faith, albeit a very flawed and broken one, I was particularly pleased that we– my clients, other abuse survivors and their lawyers– had held out for a nearly unique commitment and promise from the Archbishop that he would open the files of the past. I believed that this church could not achieve healing and reconciliation for itself, its members and its victims without shedding its old habit of secrecy, and so I was delighted at the promises. I was even proud, thinking that my clients, other abuse survivors, and I and other lawyers had really accomplished something, that we had helped change an institution that had failed to live up to its own best ideals, and certainly to the example and words of its Lord. “A new era of openness” I foolishly called it.

Well, how things change. Now– over a year later– now that the lights of the TV cameras are off, now that the media and the public aren’t watching, now that the Archdiocese does not need the cooperation of plaintiffs or their lawyers to get out of a self made mess of a bankruptcy, now that the plaintiffs bring claims one at a time– instead of dozens and scores at a time, as before– my, my how things have changed.

Compassion for victims? The Archbishop and his lawyers are litigating new cases like any other powerful corporation with a pack of insurance lawyers. He has attempted to force plaintiffs to use their full names in public litigation, breaking the time-honored practice, virtually unanimously agreed upon by all institutions facing child abuse cases (Boy Scouts, the Mormon Church, schools, etc), that recognizes that plaintiffs in these cases are crime victims, are covered with the shame of child abuse, and do not need or deserve to be identified publicly. For news coverage of this incredible move, click here. When confronted publicly about this in court papers and by the news media, the Archbishop and his spokespersons have responded in ways that are, at best, simply disingenuous–claiming that all they were doing was leaving it up to the Court. Well, that just isn’t so. The fact is, courts NEVER raise the issue on their own. It was the Archbishop’s move, and only that, that tried to force survivors to use their names publicly. Fortunately, a humane and common sense federal judge saw through the tactic, and refused to countenance it.

A new era of openness? The Archbishop and his lawyers have fought full disclosure of the files of the pedophile priests tooth and nail, and even as late as July, 2008, were filing papers in bankruptcy court and in federal court to protect the files of such notorious pedophiles as Fr Thomas Laughlin. Even in the process of mediation and arbitration of the issues relating to openness, the Archdiocese sought to secret the entire briefing and arbitration of the agreement to release files. Yes, that’s right– in a proceeding where the sole issue was the Archbishop’s promise to open old files and change old ways, he sought to have the proceeding itself kept secret! And, although the Archdiocese and its lawyers quickly point to the “thousands” of pages of documents they have publicly released, a comparison of that which they have publicly released with that which is actually in the files that they routinely must turn over to plaintiffs in litigation, shows that they continue to be quite selective in what they release. Just one example suffices; concerning Laughlin. In litigation they turn over thousands of pages of documents, because they have to. Yet, as of summer 2008, what they have posted publicly on the internet concerning Laughlin is sparse and selective. Even more staggering, as recently as late July 2008, they filed papers in bankruptcy court ON THE SIDE OF FR LAUGLHIN, as he personally objects to further public release of his files. Once again– as with bishops going back 40 years– a bishop of the Archdiocese of Portland sides with Fr Laughlin against the interests of abuse survivors and against the full truth coming out.

Choosing a new way? In the face of new claims of abuse against some of the same old perpetrators– Laughlin, Grammond, etc– the Archbishop refused offers of pre-litigation mediation time and time again, instead choosing to litigate each case as vigorously and aggressively as possible, ignoring the cruel impact that such a tactic has on abuse survivors, who most of all want and need closure and justice. He even had his lawyers resist early and global mediation suggested by the federal judge overseeing the new litigation, arguing instead for a litigation-heavy approach that undoubtedly was intended to wear down victims with the brutal tactics and unending delays of litigation.

The fact is that, for the Archdiocese of Portland, nothing has changed. In my view, the Archbishop has broken, or stretched to the breaking point, virtually every one of his bankruptcy promises. It is really no different than the bishops before him, and their promises to “handle” problems of abusive priests. After years of litigation, we learned what that meant: it meant nothing. It appears now, as to Archbishop John Vlazny’s promises at the conclusion of the bankruptcy, it still means nothing. No one is more disappointed than I.