Secrecy and suppression reign Down Under

Imagine receiving your news dispatch one day, and finding in it the report of a person committed to trial for serious crimes. Imagine the report did not specify the number or the specific kind of charges, beyond saying that they were related to actions alleged to have taken place many decades ago, and that they were of a sexual nature. Imagine the report did not even specify the identity of the accused.

Imagine now, that the paucity of detail in the report owed itself to a court order barring news outlets from reporting any other details of the trial, including anything regarding its progress, or even acknowledging the trial or the gag order.

One would be forgiven for thinking oneself trapped in a Kafka novel, but closer inspection would show such a surmise to be contrary to fact, and comparison to the Bohemian’s dystopia ill-fitting real circumstance.

For one thing, it is not the accused, who is kept in the dark regarding his proceedings, but the public, in whose name the courts are seeking justice in his regard. For another, the accused is not a workaday fellow or an everyman, but a powerful figure of towering reputation, with worldwide prominence.

For yet another, it is owing to the prominence of the accused, hence to the media attention his legal troubles garnered, that the court in the jurisdiction where said prominent individual is being tried has imposed the suppression of reportage.

Suppressed for the sake of integrity?

The accused, in this case, is Cardinal George Pell, who has been on leave from his office and other responsibilities at the Vatican since June of 2017, when it became clear he would have to stand trial on separate criminal molestation counts stemming from alleged incidents decades ago. Pell vigorously maintains his innocence of all charges.

There have been reports of significant legal setbacks for him in recent days, though a court-imposed gag order in Australia means official confirmation of reports a guilty verdict has been reached is not likely to be forthcoming any time soon. Asked for comment on the situation during a briefing on Wednesday, Holy See Press Office Director Greg Burke said, “The Holy See has the utmost respect for the Australian judicial authorities. We are aware there is a suppression order in place and we respect that order.”

Reports are that Cardinal Pell has been found guilty on multiple criminal sexual molestation counts allegedly committed in the late 1990s, while he was Archbishop of Melbourne. The first jury to hear the case — dubbed the “Cathedral trial” because it involves allegations Pell abused altar servers there — reportedly could not reach a verdict. Some reports — again, unconfirmed by official sources — say the first jury was 10-2 in favor of acquittal. So, the judge declared a mistrial and empaneled a new jury, which returned the guilty verdict on Tuesday.

There are many reasons — some of which could be the defendant’s — for wanting a verdict. Far more difficult to fathom, is why this or any other procedural matter must remain secret.

Pell will be tried again early next year on other charges — the “swimmers trial” — stemming from his time as a priest in Ballarat. There, he appears to be accused of exposing himself in public showers at a swimming facility he used to frequent in the 1970s. In the post-Jerry Sandusky era, it is difficult to gauge how sensible the public might be of how thin that is. If there’s more to it, there’s no saying for the moment.

The court in Australia says it has ordered the suppression of news in order to guarantee the integrity of the process, i.e. to ensure that Cardinal Pell gets a fair trial, especially in the second one. Before he was formally indicted, Pell was subject to a vicious — and quite possibly prejudicial — campaign in the press, which intensified in the months leading to his indictment. Concern over whether he could get a fair trial in such a climate is legitimate.

The question is whether, in this or any case, such a cure as the court in Australia has prescribed is not worse than the disease. The principle of open justice can be traced at least as far back in British legal history as Magna Charta. At bottom, it is the idea that justice must be seen to be done.

That is, among others, one reason why the Vatican is certainly not in a position to complain of the treatment Pell is receiving, were it so inclined. Vatican trials of clerics similarly accused are secret as a matter of course. That is a problem. One thinks of the case of the disgraced former archbishop of Agaña (Guam), Anthony Apuron, who was tried in secret on unspecified charges — some of which were connected to abuse allegations — by an ad hoc commission of judges headed by Cardinal Raymond Burke.

Parallels with the Apuron trial

After the trial was concluded and the verdict reached, it was several months before any announcement from the Holy See. When word finally came, we were told only that Archbishop Apuron had been found guilty of some charges. “The Apostolic Tribunal of the Congregation for the Doctrine of the Faith, composed of five judges, has issued its sentence of first instance,” the statement from the Press Office of the Holy See read, “finding the accused guilty of certain of the accusations and imposing upon the accused the penalties of privation of office and prohibition of residence in the Archdiocese of Guam.”

Apuron has appealed the verdict. Pope Francis has reserved to himself the adjudication of the appeal. “I decided — because it’s a very difficult case — to take the privilege that I have of taking on the appeal myself and not sending it to the council of appeal that does its work with all the priests,” Pope Francis told journalists travelling with him to Rome from Ireland on August 26, in an exchange that was part of the usual in-flight press conference.

“I took it upon myself, and made a commission of canonists, who are helping me and they told me that when I get back, after a maximum of a month, a recommendation will be made so I can make a judgment.” It has been significantly more than a month, and yet we have no news.

“It is a complicated case, on one hand,” Pope Francis continued, “but not difficult because the evidence is clear. I cannot pre-judge. I await the report and then I will judge. I say that the evidence is clear because there is this evidence, which led the first tribunal to the condemnation.”

What evidence, precisely, is that? To which charges does the clear evidence speak? What about the other evidence? What about exculpatory evidence? More to the point: even if an appeal is to be granted automatically, what is the legal basis of it? Does Apuron dispute the conviction? The process? Both? While we’re at it: where is Archbishop Apuron?

The Pacific Daily News quoted Apuron’s coadjutor, Archbishop Michael Jude Byrnes, as telling the US bishops gathered in Baltimore this past November, “[T]here’s been no meaningful constraints upon the archbishop to whom I’m still a coadjutor, pending appeal.” Byrnes is further quoted as saying, “I keep getting asked, where is Archbishop [Apuron]? I have to say I have no idea. There is no contact. He’s not been assigned to a certain place. In fact, he’s been, pending appeal, restricted from returning to Guam.”

One place Apuron was sighted shortly after the announcement of his conviction was on a dais, with dozens of other prelates — and Pope Francis — at a major international gathering of the Neocatechumenal Way, of which Apuron has been a staunch supporter. At least some of Apuron’s legal woes — both civil and ecclesiastical — stem from his handling of the Redemptoris Mater seminary on Guam, the running of which he entrusted to the Neocatechumenate.

Chamber made

In both cases — Cardinal Pell’s and Archbishop Apuron’s — the rationale for secrecy is the same: protection of the reputation of the accused and the integrity of the judicial process. In both cases, the cat was out of the bag long before either man was indicted, let alone brought to the bar. In both cases, secrecy has actually raised questions about the integrity of the proceedings, even as it has done little to protect the reputations of the men accused.

In Pell’s case, the concern is that Australia wants to railroad him. In Apuron’s case, the concerns are manifold, but include the possibility that he is either being set up for a fall, or let off easy, or both. In both cases, secrecy is serving to undermine confidence in the systems in which the men are being tried.

Nor is history bereft of examples of what happens when even ostensibly well-intentioned measures are taken to render judicial proceedings opaque.

In the late 15^th century, England established a special tribunal for the trial — in secret — of individuals believed to be so powerful or so prominent that justice could not be guaranteed them in the ordinary public courts. The tribunal eventually became a by-word for the arbitrary and oppressive use of the judicial power, especially against political rivals. While it sat, however, the tribunal habitually held its sessions in a room in Westminster palace, from which it took its name: The Court of the Star Chamber.