By Kathleen Gilbert
SOUTH BEND, Indiana, February 8, 2010 (LifeSiteNews.com) - Correspondence obtained by LifeSiteNews.com (LSN) this week concerning the "Notre Dame 88" scandal has thrown into question Notre Dame President Fr. John Jenkins' claim that he has done all in his power to help the “ND88” pro-life protesters, who still face charges for trespassing on campus last May.
Fr. Jenkins has continued to defend his refusal to request that the charges against the ND88 be dropped altogether based on the offer of a “pre-trial diversion.” Under this offer the defendants would have to agree to pay several hundred dollars in court fees, avoid any trouble with the law for 1 year, perform a certain number of hours of community service, and promise to stay off Notre Dame property for a certain period of time, in exchange for the charges being dropped after a year.
But a letter sent to Jenkins from attorney and Notre Dame alumnus Tom Brejcha of the Thomas More Society several months ago pointed out the serious flaws with the offer of diversion – which wouldn’t even apply to many of the ND88. Brejcha told LSN, however, that Jenkins has so far failed to respond to his letter.
Scores of pro-lifers were arrested at Notre Dame last year for protesting the school's decision to host President Barack Obama as commencement speaker and award him with an honorary law degree at the May 17 graduation. Witnesses say that many were apprehended simply for walking on campus with a rosary, pro-life sign, image of Mary, or other form of support for pro-life Catholicism, while pro-Obama demonstrators trespassing on campus were not stopped.
(Click here to sign the Free the ND 88 petition)
Since last May, pro-life advocates led by Brejcha have called upon President Jenkins to request leniency for the 88 pro-lifers still facing a sentence of up to a year in jail and a $5,000 fine. Although St. Joseph County is technically the prosecutor of the case, and not Notre Dame, experts say a request for leniency by Jenkins would carry great weight in dismissing the charges.
As late as last month, Jenkins had deflected criticism in emailed responses by pointing out that "Notre Dame is not the complainant in these matters" and therefore cannot directly drop the charges. Also, he said, the prosecutor has offered pre-trial diversions "to those for whom the May incident was a first-time offense."
"We understand that most of those arrested have chosen not to take advantage of this offer and obviously we cannot force them to do so. In essence, the choice of whether or not to go to trial belongs to the defendants," said Jenkins.
However, in an October 2009 letter to Jenkins and Notre Dame fellows, Brejcha had already pointed out the serious weakness of Jenkins' excuse for not seeking leniency.
"With respect, permit me to suggest that there may be a very serious misapprehension about the character of the protest that gave rise to last May’s arrests," wrote Brejcha.
He explains that there are many reasons why the pre-trial diversion option is inadequate. "One is that even a single prior conviction would negate any diversion, and yet many of the ND88 have convictions on their record. How so? Because of prior involvement in peaceable, non-violent direct action [against abortion]," he wrote.
Brejcha continued: "Many of these folks are impecunious, so that paying court costs – another condition of the diversion offers – would be prohibitive. Nor do they take kindly to being banned from Notre Dame’s campus as persona non grata.
"Nor do they understand why they must perform so many hours of community service. They say that coming to Notre Dame was a community service.
"What’s really wrong with pretrial diversion, then," wrote Brejcha, " is that the ND88 don’t believe they did anything wrong by marching, preaching, or praying on Notre Dame’s campus. To them, pretrial diversion despairs that Notre Dame would ever join them in serving the cause of life."
Brejcha recalled a bizarre personal encounter with Fr. Jenkins in which they discussed the Notre Dame 88 the previous week: "When I said to you, Fr. Jenkins, that these defendants believe that, like Dr. King, they did nothing wrong but were marching for civil rights and social justice for all Americans, born and unborn, you responded, 'But Dr. King served time in jail.'"
"We submit, with respect, that Notre Dame should shun the role of either Birmingham and its police chief Bull Connor, or that of the ‘moderate’ churchmen on the other hand, to whom Dr. King addressed his letter [from Birmingham City Jail]," wrote the lawyer.
"We don’t understand what Notre Dame would gain from letting these cases proceed apace and grind on in St. Joseph County Criminal Court. This should be viewed as a family dispute, to be resolved – if at all possible – in a family council and not in police court," said Brejcha - adding that the ND88 "deserve an invitation to return to the Notre Dame campus – this time to be welcomed and given a chance to tell their stories, without interruption, let alone arrest, handcuffing and jailing."