HARRISBURG — The intense and largely secret fight over whether to permanently shield the names of some Catholic clergy accused of sexually abusing children or concealing it will for the first time be aired in open court.
The Pennsylvania Supreme Court on Wednesday is scheduled to hear oral arguments in a case that will determine whether sections of the state grand jury report on clergy sexual abuse that are now blacked out should remain redacted. Those marks shield the names of a group of former and current clergy who contend that passages about them in the report are inaccurate or unfairly harm their reputations.
The justices' decision could have broad implications not just for the clergy members, but also for prosecutors hoping to use grand juries in the future to investigate corruption or misconduct in institutions. That is because lawyers for the clergy members have attacked the process used to produce the report.
At the heart of the case is the contention that the state Attorney General's Office, in investigating decades-old abuse in nearly every Catholic diocese, trampled on the due-process rights of those under scrutiny. Lawyers for the clergy members argue that they were denied the opportunity to appear before the grand jury to defend themselves, question witnesses, or provide contradictory evidence.
State prosecutors have countered that named clergy had the chance to respond via written statement and that the allegations are supported by the church's own internal records.
The justices, in a rare opinion as the case was unfolding over the summer, wrote that they believed the case raised due-process concerns but that they were not yet of "one mind" as to the best way to resolve the problem.
"There can be no doubt that the subject matter of the report is incendiary, and therefore, the stakes for individuals reproached therein are substantially heightened," Chief Justice Thomas Saylor wrote in the July 27 opinion.
In a brief submitted to the high court this month, lawyers for the clergy said that the report is too flawed and has received too much publicity — poisoning the well of public opinion — to alleviate their clients' concerns. The only solution, they said, is to permanently block release of redacted sections.
"The OAG [Office of Attorney General] has overseen, controlled, and orchestrated every step of this process, from the investigation to the choreographed media campaign that followed," wrote attorney Justin Danilewitz of Saul Ewing Arnstein & Lehr LLP. He later added: "Humpty Dumpty cannot be put back together again."
The Attorney General's Office, however, argued that the clergy members' concerns could be resolved by recalling the grand jury that wrote the report, or rolling the matter over to a new grand jury for consideration. Office lawyers urged the justices to strike a balance that preserves the attorney general's right, under the law, to use the grand jury to investigate corrupt public or private institutions.
"Grand juries are only one of many reporting processes created by the government to hold powerful institutions accountable to the governed," Ronald Eisenberg, senior appellate counsel for the Attorney General's Office, wrote in a court brief. He added later: "It is important that the balance be struck well."
Defense lawyers and prosecutors are watching closely. The high court could limit the ability of grand juries to issue reports without also filing criminal charges.
The Attorney General's Office has said that it could not charge many of the clergy members mentioned because their crimes occurred long ago, outside the criminal statute of limitations. Attorney General Josh Shapiro has said some church leaders purposely buried allegations to run out the clock.
The report singled out more than 300 priests who together abused more than 1,000 children over 70 years in nearly every Catholic diocese in the state.
Defense lawyers say this is not the first time such issues have been raised, but this case has brought the problem into its sharpest focus yet because of the nature of the allegations.
Danilewitz wrote that being named as a "predator priest" in the report is akin to being branded a lifetime sex offender — albeit without a criminal conviction. He said the "stigma" could follow his clients forever.
The Attorney General's Office countered that it is sometimes necessary to identify people by name to bring to account powerful institutions. "To remedy wrongdoing, in particular systemic wrongdoing, it may be necessary to expose and understand it, whether the problem is waste of millions, sexual harassment or abuse, or dysfunction in a local justice system," Eisenberg wrote.
The first public arguments in the case are scheduled for 9:30 a.m. in Philadelphia. It is unclear when the justices will issue a decision.
The high court released the redacted version of the report last month, but Shapiro and his team have vowed to continue fighting for a full release.