By Travis Sanford
PORTLAND, Ore. (CN) – "Secrecy is the fertilizer of sexual abuse!" attorney Kelly Clark thundered in his opening remarks, urging Multnomah County Judge John Wittmayer to vacate a protective order on nearly 20,000 pages of evidence documenting sexual abuse in the Boy Scouts of America. The trial ended in May with the jury awarding Clark’s client $18.5 million in punitive damages. The documents, the so-called "perversion files," were admitted after the Boy Scouts lost a long legal battle to keep them out of court. The issue went all the way to the Oregon Supreme Court.
But Judge Wittmayer ordered that access to the files be restricted to attorneys for both sides and their employees, and the jury, during the course of the trial.
Clark wants the secrecy order vacated. He cites Article 1 Section 10, the Open Courts section of the Oregon Constitution, which states: "No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation."
Clark says that means that the public has the right to see the evidence upon which the jury reached its decision.
But Rob Albiset, representing the Boy Scouts, claimed that Article 1 Section 10 merely protects the right of the public to have access to court proceedings, but does not grant the public the right to see evidence that was admitted but not shown or reproduced publicly during the trial.
In the case at hand, involving the molestation of plaintiff Kerry Lewis, parts of the files were read to the jury by both sides and extractions of text were projected onto screens for the jury to read. Albiset said the public had the right only to this representation of the evidence.
But Clark said that that would mean the public had a right to review only whatever was small enough to be read aloud or projected in a comprehensible way, and that the state constitution did not intend to discriminate against evidence because it was unwieldy.
A third group, news organizations, including Courthouse News, seeking access to the records, was represented by Daniel Lindahl. He noted that Article 1 Section 10 was subtitled "Administration of Justice" and that this suggests that every activity and item that was presented or entered into evidence was covered by the Oregon Constitution. Lindahl cited case law holding that even evidence or testimony later found to have been admitted in error was a mater of public record.
All three attorneys answered Judge Wittmayer’s questions on other points of law. During one exchange Albiset said the plaintiff lacked standing to challenge Wittmayer’s order because his access to the files was not restricted, and he had been able to successfully make his case.
Albiset told the judge that he should balance the possible prejudice that public release of the documents could have on several molestation trials still on Wittmayer’s docket, involving from the same abuser.
Wittmayer responded, "Isn’t the solution to prejudicial pretrial publicity the voire dire process?"
Albiset answered that it would unnecessarily complicate the selection process because the Oregonian newspaper had a circulation of 300,000 in a potential jury pool of 700,000.
"Couldn’t that be remedied by a change of venue?" Wittmayer asked.
Albiset persisted, saying potential jurors had become sophisticated at hiding their biases in the face of pervasive media coverage.
Clark angrily suggested during his rebuttal that elimination of the jury system and open courts might serve the Scouts as a solution to any perceived prejudice.
"The Boy Scouts of America still doesn’t get it that for healing to begin, the evidence must be made public," Clark said. "Plaintiffs believe abuse thrives in secrecy and it is time to get rid of the secrecy."
On the public interest in making the files public, Lindahl said, "The public wants to judge the merits of government-sanctioned liability, especially in damages cases, and how can the public judge fairness if they can’t review the data?"
Lindahl said that constitutional mandates allow no consideration of prejudice to parties in future litigation and that no balancing of prejudice versus access is allowed. For or the public to have faith in the system, he said, the evidence on which the jury adjudicated the case must be made public.
Judge Wittmayer aid he would rule the motion as soon as possible.