Special Report

Atrociously Conflicted

Welcome to the ACLU, Arkansas division.

By 2.28.05

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Bill Moyers got it exactly right.

You don't see that statement often in these pages, so allow me to clarify: Bill Moyers nailed it when he said, "Ideologues embrace a worldview that cannot be changed because they admit no evidence to the contrary."

Moyers wasn't thinking of the ACLU when he said that. However, when it comes to the ideologues advancing the ACLU's gay-rights agenda, it is literally true. An ethics complaint alleges that an ACLU attorney violated conflict of interest rules in two Arkansas gay-rights cases, and suggests that the attorney "actively sabotaged" her client's case by refusing to admit evidence that might call the ACLU's agenda into question.

The ACLU's Lesbian and Gay Rights Project has a strategy of bringing what it calls "impact" lawsuits around the country, with the ultimate goal of "changing the way people think," or as it summarizes on its website: "Don't Just Sue the Bastards--Do Something Useful." That notion encapsulates its contempt for traditional values pretty well; in its world, any opposition to its agenda is "manufactured by a small but powerful group of anti-gay extremists. Wrapping themselves in cloaks of 'family' and 'values,' these groups are spending tens of millions of dollars to confuse, distort and subvert the public debate."

Unfortunately, the ACLU project's disdain for the Bastards it is suing -- in these cases, Arkansas -- has led the ACLU's attorneys right off the deep end. They have forgotten fundamental rules of legal ethics, and they have smeared an expert witness as a religious fanatic in an effort to suppress the evidence they were afraid he might present.

CONFLICT OF INTEREST RULES are pretty basic elements of lawyering. You can't represent opposing parties unless both of them give you written consent, and maybe not even then. As with its decision to secretly collect information on its donors, this is behavior that the ACLU would condemn in less enlightened institutions. Just a suggestion of conflict attached to Justice Scalia's duck hunting trip with Dick Cheney was enough to start the Left's hounds baying for weeks. But Arkansas attorney and ACLU member Kathy Hall stands accused of far more egregious offense.

According to the ethics complaint, at the same time Hall defended the Arkansas Child Welfare Agency Review Board (CWARB) against an ACLU lawsuit in the case of Howard v. CWARB, she also served as co-counsel for the ACLU in a case against an Arkansas school board -- McLaughlin v. Pulaski School District.

The two cases were not unrelated. In McLaughlin, Hall worked on behalf of the ACLU to sue a school district for restricting a gay teenager's freedom to speak about his homosexuality. In Howard, Hall opposed the ACLU, defending the CWARB's policy of not allowing gay couples to serve as foster parents.

Whether Ms. Hall liked CWARB's policy or not, her duty was to defend her client and to disclose any conflicts of interest. (James Balcom, chairman of CWARB, confirmed that he didn't learn of Hall's representation of the ACLU until the trial was nearly over, and only then from a witness rather than from Ms. Hall.)

Here is Ms. Hall's response to my inquiry about the complaint and the suit against her:

As an attorney, my job is to argue for my client. I firmly believe that every one, both sides to a case, has a right to zealous representation. When I present a case for my client, I represent the client's interest to best of my ability-regardless of my personal opinions.

Why didn't the ACLU speak up about Ms. Hall's likely conflict of interest, as it ought to have done? It's not like its top brass didn't know who she was. Two of the ACLU's lawyers opposing Ms. Hall and the CWARB were James Esseks, the litigation director of the ACLU's national Lesbian and Gay Rights Project, and Leslie Cooper, a staff attorney for the ACLU's Lesbian and Gay Rights Project.

Their silence is especially curious, since Ms. Hall's ACLU co-counsel on the McLaughlin case were...Leslie Cooper and James Esseks, of the ACLU's Lesbian and Gay Rights Project. (Scroll to the bottom.)

NOW IMAGINE THE KERFUFFLE had a conservative lawyer, say a member of the Federalist Society, not only kept quiet about a conflict of interest, but then refused to ask her sole expert witness a few important questions that could have affected the trial's outcome -- and then lost the trial. The MSM would be all over her like pink on a pig.

Sure, lawyers have some discretion in how they'll question a witness. But rarely are experts so shocked at an attorney's questions that they sue her. That's exactly what Kathy Hall's expert witness, Dr. George Rekers, has done.

Dr. Rekers, a founder of the conservative Family Research Council, is admittedly a controversial figure. In fact Ms. Hall's friends and/or adversaries at the ACLU have compiled a quite uncomplimentary "fact sheet" on Dr. Rekers which accuses him of such sundry perfidies as being -- children, avert your eyes -- an ordained Southern Baptist minister.

Dr. Rekers is especially dangerous to the ACLU's agenda not primarily because of his faith, but because he is also a tenured professor of Neuropsychiatry and Behavioral Science at the University of South Carolina School of Medicine, and author of several peer-reviewed articles and books on child psychology. He told Ms. Hall he was prepared to testify about several scientific studies that could support CWARB's policy. (I have seen the notes Dr. Rekers prepared for trial, and they consist of 70 pages summarizing scientific articles -- a purely clinical tract, and not a religious one.)

However, this evidence was never introduced, both because Kathy Hall mysteriously chose not to ask about it during direct examination, and because a pre-trial motion barred much of it from being introduced.

That motion was filed not by the ACLU, but by the CWARB's own attorney, Kathy Hall. According to an e-mail sent from Dr. Rekers to his university colleagues, Hall

never entered any of the actual research studies into evidence and she never handed me any of the articles on the stand. Instead, (although she was supposed to represent the state's regulation) she made several motions before I got on the stand to prohibit the entering of four or five areas of evidence I had gathered in support of the state regulation!

Meanwhile, the ACLU attorney cross-examined Dr. Rekers by grilling him about his personal religious beliefs about sex and marriage.

The CWARB lost Howard. Judge Timothy Fox was not impressed with Dr. Rekers' testimony, noting in his decision that

[I]t was apparent ... [Dr. Rekers] was there primarily to promote his own personal ideology. If the furtherance of such ideology meant providing the court with only partial information or selectively analyzing study results that was acceptable to Dr. Rekers.

Given their failure to bring relevant testimony before the court, and their smear of Dr. Rekers without addressing the substance of his evidence, it looks like Judge Fox's harsh words about putting ideology before the evidence better describe the lawyers of the ACLU's Lesbian and Gay Rights Project.

One concern about the ACLU's aggressive attempts to discredit Dr. Rekers' testimony is the implication that people of strong religious faith would never be allowed to testify on their subjects of professional expertise. They alleged a fundamental conflict between Dr. Rekers' private religious beliefs and his ability to tell the truth in court on subjects of religious significance. The irony is pretty staggering: even as the ACLU made this argument, it knew (I suppose I should say or should have known) quite well that one of the lawyers in the courtroom shouldn't have been there because of a glaringly apparent conflict, and it did nothing about it. Who are the real zealots here?

Gay adoption and foster parenting are divisive issues, but this story isn't ultimately about gay adoption or even legal ethics. It's about the ACLU putting its agenda above the rules, something even partisans on both sides ought to condemn.

Arkansas' CWARB has appealed the Howard decision, and it sounds like it has grounds for a new trial to be granted. I would be fairly optimistic, except that the attorney handling its appeal is...

Why, of course: Kathy Hall.

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