Courts Just As Guilty in Church Coverup

By Stephanie S. Abrutyn
Hartford Courant
May 26, 2002

The Catholic Church and many of its most powerful officials in the United States have a lot of explaining to do about their role in covering up improper sexual conduct by priests. But a multitude of judges and courts played just as big a part in keeping this issue from the public, and they, too, should be called on to reform their practices.

There is a strong tradition of public access to courts and court records in this country. Grounded in common law practices that the Colonists carried with them from England, open trials have been the norm from the beginning of our nation.

In the early days, cities and towns had "court day," when all the citizens would gather in the main square to watch the administration of justice. Seeing it for themselves, the philosophy dictated, was the only way common citizens could be sure that courts and judges were not abusing their power.

"People in an open society do not demand infallibility from their institutions," the U.S. Supreme Court observed in a 1980 case, "but it is difficult for them to accept what they are prohibited from observing." Over time, as the civil court system developed, it, too, operated on the fundamental premise that courts and court records are open to the public. In 1978, in Nixon vs. Warner Communications, the U.S. Supreme Court confirmed the existence of a strong common law right to inspect and copy court records. The court ruled that access must be granted to Nixon's White House tapes, which were in the court files, though it did not allow the TV networks to copy them. Then, in the 1980 case of Richmond Newspapers vs. Virginia, the Supreme Court explicitly recognized for the first time that our Constitution guarantees the right of access to criminal trials. In addition to a defendant's right to a public trial guaranteed by the Sixth Amendment to the Constitution, the court found that there is a separate and distinct right of access to the proceedings which belongs to the public (and press) and which is found in the First Amendment.

Not long thereafter, numerous federal and state courts logically concluded that the same right of access exists to civil trials at all levels and to the documents and records filed in those cases.

In theory, because there is a public right to attend court proceedings and review court records, a judge is supposed to go through an exacting analysis before entering any sort of order sealing court files. Only if the judge finds "an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest" should the file be closed or should a protective order be entered allowing documents to be sealed.

In cases where certain information, such as the name of a confidential police informant, should be kept secret, the court is supposed to white out the confidential details and release the rest of the file. Too often, however, especially when both sides in a case agree, judges forget the test and the analysis, and sign any protective order that is stuck in front of them, effectively locking the files away from public view. This is what seems to have happened whenever a victim of alleged abuse by a priest filed a lawsuit against the priest or the diocese.

One by one, newspapers throughout the Northeast are filing lawsuits to get access to what are supposed to be public court files. The Courant, The New York Times and others have sought to open up 23 cases filed against priests from the Roman Catholic Diocese of Bridgeport. The cases, originally filed between 1993 and 1999, alleged sexual abuse of minors by clergymen affiliated with the diocese. All the cases have been settled and withdrawn.

These secret files, some of which were obtained and published by The Courant two months ago, are full of stories of sexual abuse and details about how the church and its officials, including New York Cardinal Edward M. Egan, former bishop of the Bridgeport Archdiocese, handled abuse allegations when they initially were brought to the diocese by the victims.

When these and other stories began to make their way into the public consciousness a year ago, the number and magnitude of transgressions were shocking. But it turns out much of the information has been sitting in sealed court files for years.

The phenomenon is not limited to cases involving accusations against clergy. In Connecticut, affidavits in support of arrest warrants -- the documents that explain why someone was arrested -- are supposed to automatically be sealed for just 14 days and then unsealed unless the prosecutor makes a motion containing specific information to meet the exacting test.

In fact, prosecutors routinely submit a form on which they check off a box containing a generic one-line statement asking the court to keep the records sealed indefinitely without providing any details about the case or why it is unique, and judges routinely keep the warrant sealed. Only when someone, usually a member of the news media, cares enough to pay a few thousand dollars to a lawyer to go down to court and file a motion to unseal the warrant is the public's right of access respected.

There certainly are some instances when court records can legitimately be sealed. But too often, the judge does not even bother to ask whether the records in the case before him fit within that narrow category. Earlier this month, in the case seeking to unlock the records of the Bridgeport Diocese, Superior Court Judge Robert F. McWeeny ruled in the newspapers' favor, ordering the bulk of the files unsealed. In doing so, he noted that "the public interest exists not only with respect to the diocese's response to the allegations, but also is to be found in any facilitation of the coverup by the courts, which now hold a plethora of sealed abuse complaints which the plaintiffs have never sought to have suppressed." As Judge McWeeny understood, if the judges in the scores of cases against priests and dioceses that have been filed over the last 20 years had stepped up and taken responsibility for protecting the public's right of access to those files -- instead of rubber-stamping orders to seal files simply because both sides asked -- then maybe someone might have noticed what was going on in the Catholic Church years ago. At least victims would have known they were not alone.

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Stephanie S. Abrutyn is an attorney for Tribune Co., parent company of The Courant. She serves as in-house counsel for The Courant and five other daily newspapers in court access matters, including the Bridgeport Diocese case, and is a member of the New York Commission on Public Access to Court Records.