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  Boy Says Abuse; Priest, Ex-Nun Say Slander

By Harvey Berkman
Chicago Lawyer
January 1994

About 400 American Catholic clergy have been accused of sex abuse in the last decade - including, in November, Joseph Cardinal Bernardin.

The cases sometimes sound the same. Children are allegedly betrayed by respected elders of the church. Names are withheld; emotions run high. Questions are raised about repressed memory, the reliability of children's testimony, the veracity of witnesses, the psychological implications.

But one area case, filed in 1989 by the parents of a Northbrook boy and scheduled to come to trial before Cook County Circuit Court Judge Jerome Lerner in May, is unusual on a number of grounds:

The boy's parents are attorneys.

The boy accuses two defendants of abusing him jointly - a priest and a former nun.

Because criminal authorities declined to bring charges, the priest and former nun decided to fight ire with ire, countersuing the boy's parents for slander.

Much of the case file was sealed - possibly a first for a suit involving the Chicago Archdiocese - after the defendants charged the boy's parents with attacking them in the media from behind the veil of anonymity granted children in sex abuse cases.

Still, it is a case that typifies many civil cases, even those not involving sexual charges. Like Topsy, it grew.

A vague complaint and private meetings turned into a case so complicated that it itself generated a case within a case, charges within charges, shifting and recanted testimony, and a sanction against the boy's father. Lawyers emerged; fees and expenses may cost millions, to say nothing of the toll on lives on all sides.

It is this scenario that the court will face in its search for justice in a case in which all parties are, to some extent, victims.

The suit was filed by "John and Jane Doe" on behalf of "Richard," their only child, against the Rev. Robert J. Lutz and Alice Halpin: the pastor and principal at St. Norbert's Catholic School, 1817 Walters Ave., Northbrook, when Richard attended first and second grade there from 1986-88.

According to the complaint, Lutz and Halpin molested Richard "by touching and fondling his genitals and other body parts, by touching him with their hands and body parts (including their genitals), by disrobing and photographing him, and by forcing him to look at lewd photographs of naked children" in Halpin's office during school hours.

The suit also alleges that the two "verbally abused Richard and struck and kicked him in the head and body," and it charges the Chicago Archdiocese and Bernardin with negligent hiring and retention.

Halpin and Lutz vehemently deny the abuse allegations, calling them in a court brief, "scurrilous" and "entirely untrue."

And in their counterclaim, they allege that the Does "engaged in a malicious campaign to destroy our good standing and reputation in the community ... and intentionally caused us extreme emotional distress" by spreading Richard's charges even after numerous government agencies determined them to be "unfounded," in the words of one agency.

Neither side has specified the damages it plans to seek, although Lutz and Halpin say they'll donate to charity any punitive damages they're awarded.

Involved in the suit are lawyers from some of the city's most prominent - and expensive - firms.

Representing the Archdiocese and Bernardin are four attorneys from Mayer, Brown & Platt: the longtime Archdiocesan outside counsel, James A. Serritella; and Robert F. Finke, Bettina Getz and Javier H. Rubinstein.

Two Sidley & Austin lawyers represent Lutz: Arlene C. Erlebacher and Susan A. Stone. Mary A. Dempsey, nominated in December to be Chicago's library commissioner, worked on the case but will withdraw if confirmed as commissioner.

Patricia C. Bobb, of Patricia C. Bobb & Assoc., represents Alice Halpin.

Representing the Does is Thomas D. Decker of Thomas D. Decker & Assoc. Ltd.

The Archdiocese is paying all defense bills but declined to say how much has been spent so far on the Doe case.

The Archdiocese, however, reported spending in fiscal year 1992 of $ 1.85 million on all costs associated with alleged priest sexual misconduct - legal fees, settlements and counseling. The aggregate expenses for defending both the Archdiocese and individual priests in connection with claims and litigation was $ 846,000, including legal fees and civil settlements.

The Archdiocese listed $ 432,000 in expenses in 1992 for legal consultations for the Archdiocese, Archbishop, and the Vicar for Priests Office.

The 1992 figure hit $ 575,000 for "outreach to victims, parishes and communities affected, and evaluation, treatment and supervision of accused priests."

The consolidated expenses of the Archdiocese during the same fiscal year were $ 560 million.

When the Archdiocese released those figures, Cardinal Bernardin said he expected costs to increase in the 1993 and 1994 fiscal years.

He attributed the expected increase to expenses related to the development and implementation of new policies and procedures for responding to allegations of clerical sexual misconduct with minors, including the establishment of a Review Board, Professional Fitness Review Administrator and Victim Assistance Minister.

"We have worked diligently to develop new policies and procedures that will ensure that children and young people will not be at risk in the future and that the rights of the accused are honored and protected," Bernardin said at that time.

A preliminary figure for fiscal year 1993, which ended in July, is $ 2.8 million.

Jason Berry, in his 1992 book "Lead Us Not Into Temptation: Catholic Priests and the Sexual Abuse of Children", estimated that between 1982 and 1992, the Catholic Church in the United States spent $ 400 million in settlements, court verdicts, treatment for priests and legal expenses in relation to alleged pedophilia matters.

Attorneys involved in the Doe case declined to talk about the suit because of Judge Lerner's protective order. Information about the case in this article not attributed to interviews came from the Daley Center public file for Doe v. Lutz, 89L-10141. At one end of St. Norbert's block-long complex is a large parking lot that's still too small for all the cars that arrive Saturdays for 5 p.m. mass. Four basketball nets line the lot's edge; a playground sits snug in its corner, the blacktop covered with a bedding of woodchips.

Richard Doe says his trouble started on the playground.

The Does say they first noticed problems with Richard at the end of first grade, in the spring of 1987, when his St. Norbert's teacher died of cancer. Other parents noticed similar troubles with their children - shorter attention spans, minor moodiness. While his peers' problems diminished, Richard's persisted.

In the second half of second grade, in April 1988, the Does sent their seven-year-old son to a psychologist. Richard soon told his parents that he had been getting beaten up frequently at recess. His father, then 44, bought Richard boxing gloves to teach him self-defense; his mother, then 41, told his teacher about his fights; the teacher said she'd tell Principal Halpin.

With the arrival of summer vacation, the Does say, Richard's description of the fights grew more harrowing. He'd sometimes been attacked by groups of students, he said; one child had threatened him with a knife - which he got away from the boy and took to Halpin, who he says returned it to the child, telling him not to bring it to school again, an order Richard says the boy ignored.

In July the Does met with Lutz, now 69. A priest since 1950 and St. Norbert's pastor since 1984, Lutz told the Does he'd seen older boys fighting at recess but never any as young as Richard, the Does say. They also say Lutz said he'd rather not get involved until after the couple had talked to Halpin, who supervised the school. They met her two days later.

The Does say Halpin admitted forbidding Richard to call his father after one of the fights, that she refused to read a lengthy report by Richard's psychologist saying the boy felt "terrorized" at school, and that she denied that Richard could be getting beaten up at recess because parental volunteers monitored the playground.

Angry at the response to their concerns, the Does told Halpin Richard would not return to St. Norbert's for third grade in the fall.

In Halpin and Lutz' second amended counterclaim, filed in May 1993, they allege that John Doe made a statement that evening to the effect that he'd "get revenge on Lutz, Halpin, and the school." They don't, in the filing, say to whom he allegedly spoke.

A few days after he was told he would not go back to St. Norbert's, Richard asked for a family meeting, which the Does tape-recorded.

In it, he more graphically described the playground beatings and said Halpin would sometimes be verbally abusive when he'd get sent to her office afterward. According to an excerpt from the transcript of the family meeting Lutz and Halpin quote in their counterclaim, Richard accused Halpin of calling him a "dorkus" and "mentally retarded," of threatening to "melt his brains and dissect his head," and of saying, "Poop on your father."

Richard's father wrote the parish school board explaining his son's withdrawal from St. Norbert's as due to the Does' dissatisfaction with the response to Richard's complaints of schoolyard violence.

In September 1988 the Archdiocese convened a "reconciliation" meeting with the Does. At its conclusion the Does were told that their concerns, which now included Richard's charge that Halpin had hit him herself, would be referred to the Illinois Department of Children and Family Services and to church lawyers at Mayer, Brown & Platt.

The Does say Richard was calmer at his new school but still troubled: He had frequent nightmares and at one point wrote a will. His psychologist called him "an intelligent but profoundly depressed young boy whose defenses are rapidly crumbling under great tension and strain."

On the night of Oct. 18, 1988, Richard was taken to a hospital after he told his parents he felt extreme pain in his abdomen and groin and had urinated blood but had flushed the toilet. A doctor said he may have a torn urethra, which could be congenital or caused by trauma.

Dr. Sherwood Libit examined Richard a few days later and agreed that his urethra might be torn, but said neither this exam nor one five months earlier could confirm the existence of blood in Richard's urine.

A letter Libit wrote to another doctor a week later contained a statement that Lutz's and Halpin's lawyers have referred to in motions and briefs repeatedly:

"I am somewhat perplexed by the inability to demonstrate hematuria blood in urine on several occasions and think this could be a sign of Munchausen Syndrome by this very bright young man."

Munchausen Syndrome is a psychological disorder characterized by the fabrication of ailments to gain attention and sympathy.

Four days after the hospital trip, Richard made new charges: Lutz had on several occasions punched him hard in the stomach, back and groin, sometimes hitting him many times in quick succession - and always in Halpin's office and presence.

The next day - Sunday, Oct. 23, 1988 - John Doe went to the Northbrook Police Department to seek to charge Father Lutz with battery. After questioning Richard and investigating his story, the police said they could not corroborate it or find enough evidence to seek prosecution.

On Nov. 1 Serritella wrote the Does: The Archdiocese had reported Richard's newest allegations to DCFS, and Lutz and Halpin were restricted in their contact with children pending the outcome of the agency's investigation.

The department ultimately called the charges "unfounded."

Richard continued suffering abdominal tenderness and pain; he was diagnosed as having what the defendants dub a "common childhood back condition, called spondyloysis, which was successfully treated through the use of a corset."

The Does call it a damaged vertebra, "consistent with trauma and not congenitally caused."

In November 1988 Jane Doe attended a St. Norbert's school board meeting and distributed copies of a five-page, single-spaced letter John wrote and entitled, "In RE: Attempts to Obtain St. Norbert's School Board Investigating sic of Violence in the School and Abuse by Principal and Pastor."

The letter included Richard's charge that Halpin was verbally and physically abusive and that Lutz had repeatedly punched Richard in the stomach and groin. Lutz and Halpin cite the letter as an example of the Does' dissemination of "false, malicious and defamatory statements" about them.

On Jan. 12, 1989, Richard told his father and then his mother that Lutz and Halpin had sexually molested him. His mother taped the allegations.

At the end of the month Richard sat for three days of extensive, intense interviews by the police and the Cook County state's attorney's office. The sessions were not taped, although an officer took detailed notes. The Does dispute the notes' completeness and accuracy.

According to the notes from the first 21/2-hour interview, Richard said he was sent to Halpin's office three times for fighting.

He claimed he had been called obscenties by both Halpin and Lutz and punched in the stomach by Lutz. He claimed that on one visit shortly before Christmas in 1987, both Lutz and Halpin removed their own clothes, then Lutz removed Richard's clothes and photographed him. Richard said Lutz showed him nude photos.

He said neither adult touched him when they were all undressed and that he was not sent to Halpin's office again for the rest of second grade.

Interviewed the next day for 85 minutes, Richard added to his story with other charges.

Asked why he hadn't mentioned the abuse to the police officer who questioned him in October on his charge that Lutz had hit him, Richard said he was afraid of the officer, then conceded he wasn't really afraid, and then answered "yes" when asked if he sometimes says things he doesn't really mean. He later said he was telling the truth.

The third interview, nine days later, lasted two hours. Asked how many times he was in Halpin's office with Lutz, Richard said 11. He described the sexual abuse as occurring the same way as he did the previous week. He then described another eight visits to the office, each featuring profanity from both Halpin and Lutz and physical violence from Lutz, but no sexual molestation.

On Jan. 27, 1989, an investigator hired by the Does wrote them a six-page report.

He said Halpin's former St. Norbert secretary called her warm and gentle and denied ever hearing her use profanity or seeing her punish children harshly. He also said parishioners at Lutz' previous parish saw him as aloof, blamed him for a breakdown in discipline, and ultimately sought to have him removed.

But in 100 interviews over a two-week period, the investigator wrote, "not a word was mentioned indicating that Lutz or Halpin had ever been either physically or sexually abusive to anyone."

In February 1989 the State's Attorney's Office and Northbrook police told the Does they'd found no evidence to support Richard's story, which they said contained too many inconsistencies for them to seek an indictment. In April DCFS sent Lutz and Halpin letters saying the agency's "thorough evaluation" of the molestation allegations determined them to be "unfounded," meaning "credible evidence of child abuse or neglect has not been found."

Richard returned to a psychologist on March 23, 1989, and went four times in three weeks. The psychologist concluded that Richard's allegations were true and had resulted in emotional trauma.

In July John Doe wrote a 23-page letter to Channel Two reporter Pam Zekman entitled, "In Re: Discussion of Child Molestation: Pedophilia by Roman Catholic Clergy in Chicago Archdiocese." In this letter, also cited by Lutz and Halpin as defamatory, Doe blasted priests who victimize children; church authorities who tacitly let abuse occur; and the government agencies that investigated his son's charges, calling them harrassing and in violation of their own regulations.

On July 21 the Does filed suit on behalf of Richard against Lutz, Halpin and the church.

Five days later Jane Doe wrote a letter, on the Doe law firm's letterhead stationary, to Pope John Paul II:

"I write today not as a wife, nor as a lawyer, nor even as the faithful daughter of the Church I hope myself to be. I write you as a mother and implore you, in the name of that other Mother who watched her Son suffer and die, not to allow the abuse of children by your very own priests to continue."

A month later St. Norbert's parishioners took out an ad in a local newspaper "in support of our pastor, Father Robert Lutz, and our school principal, Ms. Alice Halpin." It was signed by more than 800 individuals and couples.

An interrogatory the Does answered in 1990 compiled $ 20,000 in expenses associated with treating Richard shortly before and after he made the abuse allegations. It lists visits to three hospitals, 12 medical doctors, two psychologists, a reading clinic, and a martial arts academy recommended as therapy.

Like the Does' complaint, the interrogatory answer contains charges Richard did not make to the police. For example: "Lutz displayed a gun to Richard while explaining that priests have special powers and that he could enter the Does' home at any time. ... Each time these threats were made, they were coupled with the admonition to tell no one, especially his parents, or Lutz would act upon the threat."

In their counterclaim, Lutz and Halpin say that in September 1988, "a clinical psychologist who had examined Richard Doe wrote a letter to his parents calling Richard 'a very troubled boy' who had an 'extreme potential for distorting reality' and 'a tendency to project his aggressive urges onto others.' "

As part of an apparent effort to explain the source of what they insist are fabricated allegations, defense lawyers asked the Does for the names of movies from their home video collection that Richard had viewed before making his charges. The Does' response includes three of the five "Nightmare on Elm Street" films, which depict the violent and gory exploits of a disfigured murderer who haunts, hunts and kills youth in their dreams. Before the Does sued, they learned of sexual allegations a woman had made against Lutz in 1984. In 1991 Judge Lerner excluded those charges from trial as irrelevant to determining whether Lutz sexually abused Richard Doe.

After they sued, a private investigator found a sexual allegation against Halpin. That discovery led to a $ 500 contempt fine against John Doe and served to buttress the defense's successful attempt to seal large portions of the court file.

The 1984 charges against Lutz were made by Mildred Nigrelli, principal at St. Mary Star of the Sea parish, where Lutz was pastor from 1975 to 1984. Nigrelli arrived there in 1963, became principal in 1979, and got fired four years later.

Nigrelli filed a federal employment discrimination suit in U.S. District Court for the Northern District of Illinois.

According to an affidavit Nigrelli prepared for the Does, Lutz fired her when she "refused to accept or comply with his sexual demands and assaults."

The suit settled in January 1993. Both sides agreed not to discuss the case or settlement.

The Does argue that Nigrelli's 1984 charges put the Archdiocese and Bernardin on notice that Lutz "posed an unreasonable risk of harm" to others unless well supervised - making the decision to put him in charge of a grade school willful and wanton negligence.

In August 1990 the Archdiocese and Bernardin moved to dismiss the negligence allegation, arguing that church officials had acted reasonably, investigating Nigrelli's allegations and finding them unfounded. In support of this motion, they submitted affidavits from three Archdiocesan administrators with knowledge of Nigrelli's dismissal.

These affidavits say Nigrelli was fired after a thorough review by a number of people.

Lerner refused to dismiss the Does' negligence charges but did sever and stay discovery on them unless and until Richard Doe prevails at trial on the question of Lutz's alleged abuse.

Soon after this ruling, Lutz moved for an order to prevent the plaintiffs from using the Nigrelli matter to prove the abuse charges.

He argued that her charges are relevent only to the issue of negligent hiring, as they address the question of whether Bernardin had reason to believe Lutz was dangerous. They're not relevant, he said, to the question of whether the alleged abuse of Richard Doe occurred: Prior-act evidence is inadmissible unless the acts are "substantially similar to the acts at issue," Lutz argued, and where Nigrelli alleges the harrassment of a female adult, the Does allege the abuse of a male child.

Moreover, Lutz noted that Nigrelli told police that to the best of her knowledge, he never sexually or physically abused St. Mary's children.

Decker contends there are numerous factual similarities between Doe's and Nigrelli's allegations.

"She alleges that he committed batteries against her with distinct sexual components, just as does Richard Doe," Decker wrote. "Both allege that Lutz struck, slapped, and kicked them. She and he allege that this physical conduct was accompanied by the use of profanities most unusual for a member of the clergy.

"... The actor in these two separate dramas ... suffers from a malady whose manifestations are a signature and serve to identify him and govern his actions."

With the motion to exclude Nigrelli pending, another drama unfolded. The Does' investigator, Richard T. O'Brien, interviewed administrators, teachers and workers at St. Norbert's, St. Mary's, and a third, largely black, now shuttered Catholic school on the city's South Side.

Halpin, then a nun, was principal of that school from 1974 until 1981, when she left the Sisters of Mercy Order and moved to teach at St. Norbert's.

On the day the Does filed suit in July 1989, O'Brien questioned people outside Halpin's old parish. One was David Nolan, then 23 and a handyman at the rectory. He said he attended the school during Halpin's tenure.

According to an affidavit O'Brien filed, Nolan alleged he had been molested by a priest at a seminary out-of-state and had returned to Chicago, where he began a lengthy sexual relationship initiated by an area priest. Neither priest was Lutz.

O'Brien's affidavit said Nolan also made allegations about Halpin: He said that when he was in grade school, she'd pull down his pants to see his underwear. Nolan gave a sworn statement to that effect Oct. 1, 1990.

He said she never touched him sexually. He also said she had a short temper.

On Oct. 25 Nolan gave a second sworn statement - this time in the offices of Mayer, Brown & Platt, answering questions asked by Bettina Getz, an attorney assisting Serritella.

In that statement, Nolan said he lied about the underwear checks and his sexual relationship with the Chicago priest.

Asked why he lied when he gave the statement to Doe, Nolan answered: "I was promised $ 10,000 by Richard T. O'Brien, Mr. Doe's investigator."

Both O'Brien and Doe deny in affidavits that they offered Nolan a bribe or told him to lie.

Of his recantation, Nolan said: "I came here of my own free will because I want to set the record straight."

On Nov. 30 Nolan returned to the Mayer, Brown office to give a second sworn statement - one day after, he said, O'Brien had come to the church to see him again.

Asked by Getz whether he felt "threatened," "harrassed" and "embarrassed," Nolan said yes.

Three days later, the Archdiocese asked Lerner for an order prohibiting ex parte witness communications and for "strict sanctions" against Doe.

Getz noted that Rule 4.2 of the Illinois Rules of Professional Conduct forbids a lawyer in a case to contact a party represented by counsel without that lawyer's permission. She argued that that covers attorneys who are parties in a suit as well as the counsel in a suit and their agents, such as O'Brien. The rule protects not just opposing parties but also "personnel of an organization represented by counsel," such as Nolan.

Decker, Doe's attorney, responded with a motion to sanction the Archdiocese for filing its motion, which he said is supported by "inapt authorities and factual inaccuracies."

Decker also argued that Nolan's recantation was untruthful on a variety of grounds.

Responded Getz:

"... plaintiffs have not even begun to explain why Mr. Nolan would lie when recanting his earlier accusations ... and admitting against interest that he had given perjured testimony."

She said dismissal of the suit is the "most appropriate sanction" for a bribe offered by the agent of a party who is an attorney.

Judge Lerner granted an emergency protective order in December 1990, ordering Doe and his agents not to contact Nolan.

On Jan. 11, 1991, he stayed all motions for sanctions pending an investigation by the Cook County State's Attorney's Office, and he prohibited the plaintiffs from contacting witnesses at any Archdiocesan property.

Two more motions for protective orders soon followed.

In April 1991, after learning that the Does were talking to author Jason Berry, Lutz and Halpin asked Lerner "to exercise his inherent jurisdiction to enter a Protective Order and to Seal the Court File" to assure a fair trial and protect them "from being further harmed by the conduct of the Plaintiffs ..."

Bobb, Halpin's attorney, wrote that Doe's deposition "details his very concerted effort to generate and instigate an interest in the case among a cross-section of the press ... Perhaps Doe feels that he can use the press to engender sympathy for his son and exert pressure on the Archdiocese to settle this case. Whatever his motives, his actions are improper and clearly outside the boundaries of fair comment on a pending case."

The brief then lists eight reporters with whom Doe allegedly communicated, including Berry, who published a lengthy article in May 1991 in The Reader on the Doe case and pedophilia in the Catholic church.

Bobb also asked Lerner to seal the file to prevent publication of Nolan's sworn statement to the Does, as he recanted it under oath in its entirety.

"There can be no arguable purpose of any kind for the Nolan materials to be available to the public and presumably the press," she wrote.

On July 10, 1991, the Archdiocese moved for a protective order of its own.

It asked Lerner to require "that all discovery materials, including deposition testimony, produced or tendered by Archdiocesan employees be used only for purposes of this litigation and not be disseminated to third parties unconnected with the lawsuit ... In addition, we request that transcripts of depositions taken of Archdiocese employees be filed in camera ..."

Why?

"Not only have plaintiffs attempted to try this case in the press, but their efforts to publicize information generated during this lawsuit invariably will prejudice defendants' right to a fair trial ... The contents of The Reader article make clear that any information provided by defendants ... will conceivably be handed over to third parties as part of plaintiffs' larger crusade against the Archdiocese."

The brief then quoted Doe in the Nolan tape: "What our hope is, is to force enough pressure to bear that the control of abuse investigations should be taken away from the priests and given to lay people."

The Does deny seeking to try the case in the media, saying they only sought information from reporters they believed to be informed about pedophile-priests.

In affidavits filed with a recent motion to dismiss the slander suit, the Does say they have adopted "a general policy with media representatives ... of declining to ... address the merits of the case (did the counterdefendants actually commit the offenses charged), and confining any remarks about the charges to what the law suit alleged."

Two weeks after the Archdiocese filed its motion, Lerner in large part granted it, as well as the order Lutz sought to bar discovery on Nigrelli; he did not, however, grant Bobb's request that he seal the file completely.

"No party shall disclose any information acquired during the discovery process in this case ... to any members of the press or media," he wrote.

He also required that any discovery documents, as well as any pleadings setting forth those documents' contents, be filed in his chambers.

Two lawyers who recently debated the use of sealed files agreed that in this case, Lerner's decision appeared appropriate.

Robert L. Habush, of Habush, Habush, Davis & Rottier in Milwaukee, is a former president of the American Trial Lawyers' Association who represents plaintiffs in product liability cases.

Habush opposes sealed files "as a general proposition" and noted that in many 1980s cases of pedophile priests, church officials secretly settled with parents and moved the priests to other parishes, where they molested again - precisely the problem presented in secret product-liability settlements: repeated harm.

"There's been too much secrecy already in this whole area," he said. "Any further attempt to put it under a blanket is a serious mistake."

Yet he said Lerner might have struck a "reasonable middle ground," especially if his decision to seal the file, in response to prima-facie complaints that the plaintiffs were trying the case in the media, applies only until trial.

Habush's debate opponent was Frank J. Daily, a partner at Milwaukee's Quarles & Brady. He reported for the Chicago Tribune before becoming a lawyer and now represents product-liability defendants. His firm also represents the Milwaukee Archdiocese, but Daily is not involved in its defense of priests charged with sexual abuse.

"You can seek protection for victims as well as for those who've been accused, but you also need to recognize the public's significant right to know what's going on in court," he said. "Exquisite dilemmas occur in terms of trying to balance all these rights and responsibilities.

"In looking at it from the perspective of a newspaper reporter, I was always troubled by the notion that the press can be misused. It turns our system on its head: It uses one constitutional privilege to eviscerate another constitutional privilege."

Donald P. O'Connell, presiding judge of Cook County Circuit Court's Law Division, said there are few cases in Illinois addressing the judge's common-law power to limit the public's generally free access to all court papers.

He said seal orders are often requested in Law Division but "seldom entered," and only in cases when moving parties demonstrate "some compelling private interest."

Similarly, O'Connell said, judges have the inherent power to impose gag orders but should be "extremely reluctant" to do so.

"Their concern in imposing them is to make certain that a jury is not tainted by pretrial statements," he said. "In general, though, particularly with respect to civil cases, the better approach would be, I think, very careful voir dire and even a continuance of the case if necessary, if there is some publicity shortly before trial, rather than a gag order."

In December 1992, Judge Frank H. Easterbrook of the 7th U.S. Circuit Court of Appeals emphasized the need for judges limiting access to court documents to delineate their grounds clearly. He did so in deny

 
 

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