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Fay Clayton takes no prisoners. In a legal brief delivered on Sept. 17 to the U.S. Supreme Court, the feminist attorney from Chicago blamed pro-life activists for a litany of violent acts that stop just short of murder:
Demonstrators "regularly assaulted clinic personnel and patients," Ms. Clayton wrote, "... hit and clawed them, choked them, threw them to the ground, shoved and elbowed them, and slammed them against buildings even as they begged to be let go because they were being crushed." Pro-life activists "applied so much force against bodies pinned against buildings that glass doors and windows were damaged or cracked from the pressure." In an assault on one Los Angeles post-surgical patient, pro-lifers "pulled her hair, struck her, and beat her with an anti-abortion sign until her sutures ruptured and she passed out."
Shocking behavior, if true. But in the 16-year-long federal case that yielded a landmark racketeering verdict against leading pro-life activists in 1998, an increasing array of evidence shows that much of it may not be. This term, the U.S. Supreme Court will review National Organization for Women (NOW) vs. Joseph Scheidler. As NOW's lead attorney, Ms. Clayton submitted her latest brief as grist for the mill. But the nation's nine top justices will only consider whether the law allows nonviolent, political protest to be equated with racketeering and extortion.
What the Supremes will not consider, at least not directly, is the evidence of the case, as they are charged to review legal rulings, not evidence. Other courts may reexamine that evidence, and the Supreme Court has at times found ways to take evidence into consideration. This should be one of those times, because WORLD, along with investigators hired by the defendants, has verified that some crucial witnesses appear to have lied.
Why is that evidence important? Here's a quick recap:
In 1986, the National Organization for Women filed a federal anti-trust suit. The suit named as defendants a handful of pro-life activists including Joseph Scheidler, an architect of nonviolent abortion protest, and his Chicago-based group Pro-Life Action League (PLAL). NOW's complaint: That along with his co-defendants, Mr. Scheidler, a devout Roman Catholic who had marched in 1965 with Martin Luther King Jr., interfered with interstate commerce by obstructing the right of abortionists to perform abortions, and the right of women to obtain them.
Over a period of years (see sidebar, page 22), the suit wrapped tendrils around other abortion foes, such as Operation Rescue, its founder Randall Terry, PLAL's Tim Murphy and Andy Scholberg, and the Pro-Life Action Network (PLAN), a loosely affiliated group of pro-life activists and groups across the country. But in 1989, allegations in the suit turned darker. Working with then-NOW Vice president Patricia Ireland, Ms. Clayton retooled the complaint, and the Scheidler defendants found themselves accused of Mafia-like racketeering and extortion.
Ms. Clayton claimed that Mr. Scheidler had orchestrated and controlled a nationwide, mob-like campaign of violence and intimidation against women and abortionists to "extort" their intangible "rights" to perform and obtain abortions. To prove her case, she presented a series of what she claimed were "predicate acts," or abortion-protest incidents that involved force, violence, or intimidation so as to form a pattern prosecutable under RICO, the Racketeer Influenced and Corrupt Organizations Act.
In April 1998, after 12 years of legal wrangling, a jury held Mssrs. Scheidler, Murphy, and Scholberg, as well as PLAL and Operation Rescue, liable for extortion and racketeering. The financial judgment: $257,000 in damages, plus plaintiffs' attorney fees that are expected to exceed $1 million. At NOW's request, U.S. District Judge David Coar in 1999 also issued a nationwide, 12-year injunction that effectively tied nonviolent, pro-life civil disobedience to racketeering and extortion.
The jury and Judge Coar acted as they did because NOW had shown to their satisfaction several things. First, that Mr. Scheidler and his co-defendants were responsible for at least two acts involving fear, force, or violence during a 10-year period. Second, that those acts were extortionate, that they enabled the defendants to obtain property from the plaintiffs. And finally, that the defendants operated or managed an organized enterprise that orchestrated and controlled the acts.
Ms. Clayton was never able to link the defendants to such highly publicized violence as clinic bombings or the shooting of abortionists. So she resorted to presenting to jurors a series of less-shocking examples. She included 17 in the 2002 brief she submitted opposing the Scheidler petition for Supreme Court review. These 17 are presumably her very best evidence-after all, this is going to the highest court in the land-of the defendant's "violent" nature.
Of those 17, two were trivial. (A witness claiming protesters "kicked" her car as she drove into a clinic parking lot.) Three were acts of nonviolent civil disobedience, such as sit-ins that blocked clinic entrances. Two were refuted at trial. First, a videotape impeached the testimony of New Jersey clinic administrator Diane Straus, who claimed pro-lifers grabbed her by the hair and threw her to the sidewalk. The tape showed Ms. Straus kicking and shoving pro-lifers just before she fell. Second, clinic administrator Linda Taggert said a protester in Pensacola knocked her down some stairs, injuring her back. On cross-examination, Ms. Taggert admitted that when she filed suit on this charge, it was thrown out of court.
Ms. Clayton also listed "threatening" speech in the 2002 brief, saying Mr. Scheidler threatened clinic operators that if they did not close down, he would stage protests at their clinics. But Judge Coar himself ruled in an earlier portion of the case that the First Amendment protects such speech since it is "directed at achieving a strictly political objective ... through the infliction of economic harm."
Another incident of "violence" alleged in Ms. Clayton's brief-the "trashing" of a Delaware abortion clinic-was not connected with any of the defendants in the case.
That takes care of nine of Ms. Clayton's top 17 incidents of alleged violence, force, or intimidation. Of the remaining eight, five may be attributable to the defendants, though there was conflicting testimony at trial:
- Clinic administrator Lynn Randall claimed she was standing by police barricades at a 1988 Atlanta clinic protest, when a pro-life activist reached up and grabbed her around the throat. The witness even produced a photograph showing her bruises.
- In Milwaukee, two men pushed abortionist Susan Wicklund against a van and yelled that she "deserved to die like the babies."
- Protesters surrounded an abortionist's car at a rest stop in Illinois, and prevented him from getting into it for an hour. Mr. Scheidler was present at the scene.
- Operation Rescue protesters dogged abortionist Wicklund, meeting her at the airports of various cities she flew into, following her to and surrounding her cab, and for a month picketing her home. On one occasion protesters prevented her from leaving her driveway.
- While Mr. Scheidler addressed pro-life activists with a bullhorn outside, others forced their way into a Pensacola abortion clinic, dismantling medical equipment and contaminating sterile supplies.
Among abortion opponents, the latter three of these incidents-including the property damage at the Pensacola clinic-are defensible to some, but reprehensible to others. Meanwhile, the first two incidents involved assault, and that is not defensible. The two assaults, along with the "trashing" of the Pensacola clinic, make three acts of "threatened or actual violence against persons or property." The NOW vs. Scheidler jury, however, found the defendants liable for four such predicate acts.
Judge Coar did not require the jury to disclose which four acts it considered violent. But it is unlikely that the four included the three detailed above-plus one. That's because the three incidents not yet accounted for among Ms. Clayton's "Top 17" are much worse. They involved direct, physical-and sometimes bloody-assaults on witnesses, some of whom testified tearfully at trial.
They also are demonstrably untrue, as is other evidence NOW presented in the case. That raises a question: Did attorneys for the feminist group find it necessary to present false evidence in order to bolster its case that the defendants were a violent, organized mob?
Tim Murphy can remember when he began to suspect that some NOW witnesses were lying. It was during the testimony of NOW's Anonymous Witness C. She told the court about her visit in 1989 to the Women's Medical Center, an abortion business on Pico Boulevard in Los Angeles. "Miss C" testified anonymously because of an agreement that Scheidler attorney Thomas Brejcha made with Ms. Clayton just before the trial portion of the case commenced in 1998. According to Mr. Brejcha, Ms. Clayton said some of her witnesses had been so terrorized by the Scheidler defendants that it would be just too traumatic for them to reveal their identities. Mr. Brejcha agreed to allow some anonymous NOW witnesses because he wanted to bring forward women who would testify about the positive impact on their lives of pro-lifers having talked them out of aborting their babies. He felt these women wouldn't want the children who had been saved to know that their mothers had once considered aborting them. So the anonymous-witness bargain was struck. The deal turned out to be fatal to the defense.
When the 50ish, stylishly dressed "Miss C" took the stand, Ms. Clayton gently led her through her story: Miss C told jurors she'd had an appointment on Feb. 11, 1989, at the Women's Medical Center for post-operative care following surgery for ovarian cysts. Her minister, "Pops" Johnson, had driven her to the clinic, she said. But before she could enter, "a crowd of people came running from both sides of the [clinic] ... they were carrying signs and shouting things at us. They were shouting 'murderer, baby murderer.'
"Then somebody grabbed me by the back of my hair and I fell up against the car. Then I remember rolling down the side of the car, and the people were hitting me.... I was yelling for Pops to help me.... As I looked up and yelled, 'Oh, God help me,' a man hit me in the head with a big old sign."
As Miss C sobbed on the witness stand, Mr. Murphy noticed some jurors crying with her. Mr. Brejcha was floored: Such an assault had never been mentioned in any of the discovery material provided by NOW attorneys. Joe Scheidler remembers thinking that Miss C was either very confused or a very good actress.
Miss C continued: Following the alleged blow to her head, she passed out. When she came to, Pops Johnson and several orange-vested clinic supporters were carrying her aloft over the crowd. The pro-life crowd was "still grabbing" at her as those carrying her helped her into the rear seat of a small car. Her surgical sutures had ruptured, she said: "I was covered in blood from the waist down.... I was hysterical. I was afraid. I thought they were going to kill me."
But legal documents cast doubt on Miss C's testimony. After the jury issued its verdict in 1998, the defense filed a series of appeals. Katie Short, an attorney with Life Legal Defense Foundation in California, was writing a brief on behalf of the defense when she noticed something odd: Miss C's testimony sounded an awful lot like the testimony of a woman who was involved in another high-profile abortion case.
"I was reading through the RICO judgment issued in 1999," Ms. Short said. "I remember thinking, 'This deals with matters in California in 1989, just about the time we were litigating National Abortion Federation vs. Operation Rescue (NAF vs. OR)," a statewide suit filed against pro-lifers by the American Civil Liberties Union. Ms. Short maintained a storage room at her home office. "I had to go outside and paw through stacks of boxes to find the complaint." Sure enough, what Miss C. described in 1998 testimony had taken place on the same date in the same location as a protest cited in strikingly similar testimony in NAF vs. OR. And the witness, whose name was Carolyn Thompson, told the same story: Her minister had driven her to the clinic for a post-operative checkup; they'd encountered a pro-life crowd; and she'd fainted dead away.
What the witness didn't say in 1989 was anything about being scratched, clawed, and beaten over the head-or waking up to find herself covered in blood.
"It looked very suspicious," Ms. Short remembers. "If I were the ACLU attorney and I had this blockbuster testimony about a bloody beating, I would have put something about it in the complaint."
And something else didn't add up: The California lawsuit was still pending. Why would someone who is a named class plaintiff in an open case need anonymity to testify about the same event in another case?
Armed with the new information, Pro-Life Action League's Mr. Murphy hired Jan Stoltenberg, a Los Angeles area, homeschool mom and pro-life activist, to investigate further. Mrs. Stoltenberg worked from a list of "Carolyn Thompsons" in her city. She visited 13 different courthouses (sometimes taking her 7-year-old daughter with her), searched voter-registration records, matched signatures and Social Security numbers, interviewed neighbors and apartment managers, and finally was able to determine with near certainty that Miss C and Carolyn Thompson were the same person.
The Scheidler team would later challenge the RICO verdict twice-and twice be denied (see sidebar)-based in part on Ms. Thompson's hidden identity and arguably false testimony. Mr. Brejcha would charge in court pleadings that Fay Clayton had deliberately obscured Ms. Thompson's identity in order to prevent the defense from comparing her 1989 declaration to her 1998 story. He noted that declarations filed in the 1989 case-one of which was from a clinic doctor who was specifically familiar with Ms. Thompson's experience that day-mention no violence at the Feb. 11, 1989, rescue. Neither did newspaper accounts or archived footage of any local news broadcast covering that day's protest.
In pre-testimony questioning in 1998, Ms. Thompson herself appeared to forget she had been assaulted. When defense co-counsel Deborah Fischer asked Ms. Thompson, "Did anyone hit you?" she replied "No." There were also other significant differences in Ms. Thompson's testimony, including whether she obtained medical treatment at an alternate location, where that treatment did or did not occur, the extent of her bleeding, and when she discovered it.
In reply briefs, Ms. Clayton never admitted Ms. Thompson's true identity. She even made statements that seem calculated to cast doubt on the idea that Miss C and Ms. Thompson were the same person: "A central problem of Scheidler's new brief is the logical leap to the conclusion that the Los Angeles patient who testified at trial is Carolyn Thompson. Scheidler's statements to this effect are simply false," and, "It is impossible to determine from the record whether this is the same person as the woman who testified nearly three years ago."
From the record, perhaps. But not from Carolyn Thompson's lips. Working with Mrs. Stoltenberg, WORLD was able to locate Ms. Thompson. "I was an anonymous witness in NOW vs. Scheidler," Ms. Thompson said in a telephone interview. Asked whether she requested to testify anonymously because she feared the Scheidler defendants, Ms. Thompson replied, "No. The NOW people had already decided I would testify anonymously when they contacted me.... I was fine with that." Ms. Thompson told WORLD that NOW's investigator, who visited Ms. Thompson's L.A. apartment, told her it would be too dangerous for her to testify using her name.
In September 2002, a reporter working on a series of abortion-related articles for a journalism fellowship project also interviewed Ms. Thompson over lunch at Spago in Beverly Hills. On a tape WORLD obtained from that journalist, Ms. Thompson said twice that she was financially "accommodated" for her testimony, adding that she "broke even." But in 2000, Patricia Moore, a friend and neighbor of Ms. Thompson's during the 1998 trial, signed an affidavit in which she stated that Ms. Thompson told her she had a "lawsuit going on in Chicago," at the same time as NOW vs. Scheidler. "She told me that she had received a substantial amount of money from the Chicago lawsuit. She said that she used part of this money to pay her rent, three months in advance."
When WORLD asked Ms. Thompson why her 1989 declaration and 1998 testimony varied so wildly, she at first seemed confused, then avoided the question. Pressed further, she said the ACLU attorney in the 1989 case "never gave me the opportunity" to say that she had been beaten over the head until her sutures ruptured. The attorney in question, Carol Sobel, did not respond to WORLD's interview requests.
Neither did Fay Clayton, who allowed Ms. Thompson's trial testimony to stand even though she must have known it did not match the 1989 declaration: It was from that document that Ms. Clayton appeared to lift, nearly verbatim, a summary of what Miss C would testify to, then delivered that summary to the defense. The summary mentioned nothing about a bloody assault.
The Scheidler team's investigation, which continued in 2000 and 2001, unraveled the testimony of other NOW witnesses-abortion clinic organizer Susan Hill, president of the National Women's Health Organization, for example. Ms. Hill told the jury that in 1985, a group came down from a just-concluded Pro-Life Action Network conference in Appleton, Wis.-which Mr. Scheidler helped organize-to participate in a pro-life demonstration at her clinic in Milwaukee. A confrontation erupted, Ms. Hill said, and "there was pushing and shoving and our administrator's husband had his arm broken in attempting to get into the building itself."
Such an assault did occur-on Richard Yeo, the husband of clinic administrator Elinor Yeo. But after the trial, Scheidler attorney Mr. Brejcha discovered that the man who had broken Mr. Yeo's arm wasn't a pro-life demonstrator at all. According to Wisconsin court records and local newspaper accounts, he was Michael Jon Dube, an unemployed electrical appliance repairman with a history of mental illness who had been walking past the clinic on his way to the post office. When Mr. Yeo mistook him for a pro-life demonstrator and tried to photograph him, Mr. Dube became enraged and knocked Mr. Yeo to the ground, smashing his camera and breaking his arm. Court records and news accounts affirm that Mr. Dube was not part of the pro-life picket. Further, he didn't assault Mr. Yeo in 1985, but on May 24, 1986-a year after Mr. Scheidler's Appleton PLAN conference. But the NOW vs. Scheidler jury never knew that: Ms. Hill's testimony effectively linked Mr. Dube's violent assault with Mr. Scheidler.
The Scheidler team also looked into the testimony of another anonymous witness, "Miss A," an attractive, well-spoken blonde. Miss A had testified at trial about "violent" pro-life activists who demonstrated during the "Summer of Mercy," a weeks-long 1991 protest at late-term abortionist George Tiller's clinic in Wichita. Miss A said anti-abortion demonstrators swarmed around abortion patients' cars, making them virtual prisoners while they waited in the sweltering heat. Pro-lifers also spit on and "grabbed and bruised ... women," Miss A said, as the women passed through a corridor federal marshals had opened in the crowd. She also testified that both Randall Terry and Joe Scheidler had intimidated her with their presence, and that there was a bomb threat while she was inside the clinic.
With the help of Colette Wilson, a Los Angeles attorney and pro-life activist, the Scheidler defendants were able to track down copies of local TV broadcasts featuring a July 1991 press conference with an attractive, well-spoken blonde woman named "Sylvia." Pro-Life Action League's Tim Murphy recognized Sylvia as "Miss A," the same woman he saw testify anonymously at trial.
Sylvia told the same regretful story as Miss A: She was married to a naval officer, had been about six months pregnant, and had driven down from Chicago for a late-term abortion because doctors said her baby had an abnormal heart. But videotape of the protest at Dr. Tiller's clinic, interspersed with Sylvia's news conference comments, did not show the swarm of violent protesters Miss A described in 1998. Instead, the film showed patients peacefully entering the clinic under the watchful gaze of a solid line of police officers. Contemporaneous newspaper accounts also mention no clinic violence.
Miss A also told the jury that she aborted her baby and drove home on the same day. The TV broadcasts pinpoint that day as July 24, 1991-five days before Joe Scheidler arrived in Wichita, a fact that even NOW attorneys concede. But again, the jury never knew that.
Mrs. Wilson helped the Scheidler team turn up more evidence of false testimony. In December 2000, while searching for the daily press clippings she'd saved during the Summer of Mercy, she found something else: An enlarged photograph of a woman named Penny Bertsch.
Ms. Bertsch is a manager at the Feminist Women's Health Center in Chico, Calif. She told the jury that pro-life demonstrators on March 11, 1989, had "smashed clinic staff members against the clinic" for four hours, bruising her, and damaging the clinic's glass entry door.
"[The protesters] all came together in front of the door in front of us, linked their arms together, smashed together as closely as they could get together and smashed against us all the way across the sidewalk ... ," Ms. Bertsch said. "I told them, 'You're smashing us.... Let us out of here.' ... You could hear people [saying], 'Don't pay any attention to them.... Whatever happens to them is God's will.'"
But the photograph in Mrs. Wilson's attic showed something different: Ms. Bertsch standing on the steps underneath a sign that read "Chico Feminist Women's Health Center," while pro-life protesters sat calmly at her feet. Mrs. Wilson had obtained the picture in 1992 from professional photographer Jed White. She contacted Mr. White and he told her he'd snapped the photo on March 11, 1989, the same day Ms. Bertsch said pro-lifers smashed her against the clinic for four hours.
Mr. White still had the negatives from several rolls of film depicting that day's protest. Mrs. Wilson and Mr. Murphy were able to locate pro-life activists featured in the photos. Two activists who had been present that day had videotaped the event virtually from beginning to end. Not only do the tapes show pro-lifers conducting a peaceful sit-in, one tape shows Ms. Bertsch and other clinic supporters picking up protesters and shoving them away from the clinic.
Penny Bertsch did not respond to WORLD's phone calls or to a certified letter requesting an interview.
But in 1998, the Scheidler jury held Mr. Scheidler and his co-defendants liable for 121 predicate acts under RICO-only four were determined to be acts or threats of physical violence to any person or property.
That means the other 117 predicate acts the jury found were based on some 21 incidents of nonviolent sit-ins at abortion clinics. During the trial, the defendants tried to get the case thrown out based on their argument that a politically motivated, nonviolent sit-in cannot legally constitute an act of extortion. Trial judge David Coar rebuffed the request, saying that there appeared to be enough evidence of violence to prove extortion. But after the verdict, he did not require the jury to make known which incidents were the basis for its findings.
That raises questions: Which, if any, of the incidents of violence about which NOW witnesses testified falsely were among the four the jury believed? And would Judge Coar have thrown out the case had it not been for that testimony?
The Supreme Court will not consider that question this fall. Instead, the justices will reconsider the issue raised by defendants at trial: Was the allegation of extortion legitimately applied in this case? But should the Scheidler appeal fail on that point, lower courts still may choose not to consider the evidence of false testimony by NOW witnesses. One way or another, those who bear false witness should not win.