By Travis Sanford
Reprinted with the kind permission of Courthouse News Service
PORTLAND (CN) — More than 1,200 files describing children’s allegations of sexual abuse in the Boy Scouts of America may become public after the Oregon Supreme Court ruled Thursday that such decisions are a matter of judicial discretion.
A jury awarded Kerry Lewis more than $19.4 million in April 2010 for sexual abuse he suffered at the hands of Scoutmaster Timor Dykes.
Multnomah County Judge John Wittmayer placed a protective order on nearly 20,000 pages of evidence documenting sexual abuse in the Boy Scouts of America.
Jurors in the Lewis case heard parts of the files read by both sides, and they read extractions of text projected onto screens.
Nicknamed the “perversion files,” the documents were admitted after the Boy Scouts lost a long legal battle to keep them out of court.
Wittmayer had restricted file access during the course of the trial to the jury, attorneys for each side and their employees.
Lewis, Courthouse News and five other media outlets tried to vacate the secrecy order, citing Article 1 Section 10, the Open Courts section of the Oregon Constitution.
The Boy Scouts countered that the constitution provided access only to court proceedings and public filings, and that release of the files would harm its ability to defend against pending and future abuse cases.
Though Wittmayer ordered production of the secret files, he put the decision on hold in June 2010 pending the Boy Scouts’ appeal to the state Supreme Court.
Wittmayer had said: “The strong direct and clear language of the [Oregon] constitution that ‘no court shall be secret, but justice shall be administered openly …’ brings the Court to the conclusion that the dictates of Article 1, Section 10 are not limited to the opportunity of the public and the press to be present physically in the courtroom during court proceedings, but extend more broadly to the right of the public and the press to know what evidence is presented in court proceedings and is available for consideration when the jury is reaching its verdict.”
The judge hedged his bets, however, in finding that the right was not absolute. He also said he could order redaction of names in the files, and that he had the discretion to release the files even if the state Supreme Court overruled him.
But the state Supreme Court sided with the Boy Scouts on the constitutional issue Thursday, finding that Section 10 determines only how court proceedings should be conducted, not what rights the public has to access.
The Oregon Constitution does not provide an “absolute right of access to trial exhibits at the close of trial,” the 31-page decision states.
Section 10 states that “no court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay.”
The justices nevertheless affirmed Wittmayer’s finding that release of the files is a matter of judicial discretion.
“Nothing in Article I, section 10 — and BSA points to nothing — that prohibits the trial court from releasing the ineligible volunteer files to the public,” Justice Robert Durham wrote for the unanimous court. “Neither does BSA point to any statute or other authority that prohibited the trial court from vacating its own protective order and releasing the ineligible volunteer files. The issuance and vacation of protective orders are matters of a trial court’s discretion.”
The court supported this conclusion with precedent that recognizes judicial discretion, based in part on the U.S. Supreme Court’s decision to grant certiorari in Nixon v. Warner Communications, which said that access to exhibits was a decision “best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.”
Both the Boy Scouts and the press were prepared for such a ruling and had argued, for different reasons, that Wittmayer had abused his discretion in deciding to release the files with the names redacted.
The Boy Scouts said Wittmayer failed to properly consider how even redacted files could pollute a potential jury pool for pending sexual abuse cases. It pointed out that Oregon’s largest daily newspaper had a circulation of 300,000 in a county with an eligible jury pool of just 700,000.
But the justices agreed with Wittmayer that good lawyers and careful attention by the court during voir dire would detect any juror prejudice.
The Boy Scouts said in a statement that it is still concerned that release of the files, even in redacted form, will “negatively impact victims’ privacy and have a chilling effect on the reporting of abuse.”
Thursday’s decision also states that Wittmayer properly evaluated the potential embarrassment and retaliation in store for victims of sexual abuse and those who reported such incidents to the Boy Scouts if their names appear in unredacted files.
Charles Hinkle, who argued the case for the media intervenors, told Courthouse News that there is silver lining in a footnote to the opinion in which the court says that it does not aim “to encourage trial courts generally to refuse access to trial exhibits at the end of a trial.”
“As we have endeavored to make clear, this court will evaluate any decision to deny access to a trial exhibit to determine whether it reflects a reasonable exercise of discretion,” the footnote states.
Lewis’ attorney Kelly Clark told Courthouse News that the release of the files is a victory for victims of sexual abuse. Clark said he hopes that it might spark a public movement to ask the state Legislature to order the mandatory disclosure of evidence of sexual abuse.
The ruling also took the thunder out of the Boy Scouts objections to discovery of the same files in other states, the attorney added.
Clark, whose office has physical custody of the original exhibits, estimated it would take at least a week for attorneys from both sides to agree on redactions from the more than 20,000 documents in the files.
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