By Hillel Aron
By Joseph Tsidulko
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By Jill Stewart
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After months of blessing the Catholic Church’s near-sacred insistence on secrecy in a criminal probe of clergy sex abuse and an alleged cover-up by Cardinal Roger Mahony, retired Los Angeles Judge Thomas Nuss this week ordered church lawyers to turn over documents to a grand jury.
With two priests under investigation, a criminal trial of former priest Michael Wempe on multiple counts of child molestation set for October, and a preliminary hearing for former priest Stephen Hernandez scheduled for this fall, Mahony must turn over to a criminal grand jury close to 500 pages of documents that could contain evidence of a conspiracy by church officials to conceal molesters. Although the ruling does not specify when those documents could become public in a criminal proceeding, it boosted efforts by Los Angeles prosecutors to examine Mahony’s self-contradicting response to the clergy scandal, while encouraging molestation survivors, who have anguished as the state judiciary has draped a shroud of secrecy over the civil-justice system, operating behind closed doors and imposing gag orders in deference to Mahony.
The judge’s order represents the best chance yet in the 2-year-old church abuse scandal to nail down precisely what Mahony knew, and how he responded to complaints about pedophile priests dating back more than a decade.
The Nuss ruling comes after staunch resistance and obfuscation by Mahony and his lawyers, J. Michael Hennigan and Donald Woods of Hennigan, Bennett and Dorman, who have refused to yield records that prosecutors believe could show that the hierarchy of the Roman Catholic Archdiocese of Los Angeles harbored pedophile priests. Woods told reporters he plans to appeal the ruling, though it signals that judges may be tiring of Mahony’s refusal to cooperate with prosecutors despite his promises of openness. "By stalling, the hierarchy has bought time," said Deputy District Attorney William Hodgman, who is leading the criminal investigation, which has yet to produce results beyond the charging of low-level priests. "The statute of limitations is ticking down with respect to the liability of the hierarchy, and these documents are a critical element in making those sorts of cases."
Rejecting the church’s First Amendment arguments, that the Establishment Clause of the U.S. Constitution and freedom of religion shield communications between bishops and priests, Nuss sliced through Mahony’s holy faÃ§ade where investigation of a sex crime is concerned. He tossed out arguments by Mahony’s lawyers that the cardinal needs to maintain secret archives, which contain details of alleged molestation of children, and could expose his failure to investigate and take action, implicating him in a cover-up. "[Mahony] cannot use an investigation of a criminal act to urge repentance, psychological evaluation or treatment and then refuse to disclose on the grounds the State is now becoming entangled in religious matters," Nuss wrote. "[He] may not keep confidential the potential evidence or proof of a crime by asserting that such disclosure would interfere with the communications between priests and bishops."
The retired judge, who is Catholic and whose brother is a priest, appeared annoyed by the church’s arguments, which have delayed prosecutors’ efforts for more than two years. Nuss excoriated Mahony’s lawyers for being argumentative, flip-flopping in their representations to the court and mischaracterizing church damage-control measures as crucial to the formation of the Catholic religion. In his opinion, Nuss made poignant references to the religious rhetoric offered up by Mahony’s lawyers, who cast the relationship between bishops and priests as akin to that of a "father to son." He rejected the purportedly sacred notion that "Church Canon Law is for a broader purpose of living a life in conformity . . . of a life of Christ," citing the church’s contemplation that its internal investigations of child molestation were vulnerable to public exposure. When Mahony invoked the sanctity of church canon law to shield pastoral discussions and investigations into clergy sex abuse, Nuss also pointed to the commentary submitted by Mahony’s own vicar for clergy, Monsignor Craig Cox, who admitted that the maintenance of secret archives ensures their availability in the event of a lawsuit. "I find these investigations and memos were done clearly as a result of allegations of sexual abuse, a crime, also a serious sin and [with] the potential for causing great harm to the Church," Nuss wrote. "The actions the Archdiocese was taking were what a normal employer would follow, if a valued, trusted employee was the subject of child abuse charges."
The ruling was a stark reminder of what is at stake if Mahony affords prosecutors or the public a look at how he has dealt with child molesters. Civil attorneys across the state who are engaged in battle on behalf of 700 alleged victims of sexual abuse compared Nuss’ ruling to one last month by Alameda County Judge Ronald Sabraw, who similarly rejected the church’s First Amendment arguments in attempting to severely limit if not derail Mahony’s deposition in a civil case. "They have lost these arguments in every court where they have tried them," said Larry Drivon, a Stockton lawyer who represents several hundred victims. Drivon pointed to what he characterized as hypocritical posturing by the U.S. bishops at their annual convention in Dallas, in the summer of 2002, when the clergy scandal swept across the country. "Zero tolerance and transparency are what they promised. They did not say ‘We will cooperate with authorities only when we run out of options, when our last dog is dead.’"
John Manly, an Orange County attorney who represents close to 100 victims of sexual abuse, was encouraged by the apparent erosion of the court’s patience for church stall and avoidance tactics, which include preventing media access to critical hearings. "Mahony may be royalty in Vatican City, but his ecclesiastical standing does not give him special standing in court," Manly said. "He wraps himself in the First Amendment to limit access to him and his secret files, but he is opposed to it when it involves access by the press." Manly noted that Nuss’ ruling rejected arguments by Mahony’s lawyers that special treatment is warranted for the cardinal because "Roman Catholic Church dogma teaches as one of its fundamental beliefs that bishops are direct successors of the apostles of Jesus Christ." Manly, a Catholic, observed, "Mahony needs to act like one. Dammit, that is a call for radical faith. He should step up to that mantle."
With the scandal having long ago receded behind closed doors, and with Catholic parishes closing around the country — some going bankrupt as a result of civil settlements — victims have become frustrated by the scorched-earth legal tactics employed by Mahony’s lawyers, even in criminal court. Yet criminal court is where the church has fared the best so far. The Nuss ruling pertains largely to the fate of priests who have been or could be charged with molestation, and its importance to victims and prosecutors is muted by a U.S Supreme Court ruling that struck down California’s child-abuse statute last July, resulting in the dismissal of hundreds of criminal cases statewide and the halting of 30 criminal grand-jury investigations in Los Angeles. Then the church’s legal strategy to forestall the inevitable got an assist from Nuss himself, who sealed all documents and court proceedings last year after the Daily Journal revealed that the Los Angeles Archdiocese was paying his $350-per-hour fee to act as a referee in ruling on the church’s document-privilege arguments. Legal action by the Journal and the Los Angeles Times to compel Nuss to release a tentative ruling forced the Court of Appeal to require Nuss to reconsider his position. In July, Nuss began releasing transcripts of hearings in which Mahony’s lawyers asserted their First Amendment defenses — a withering set of legal arguments that have mostly just bought the cardinal time.
Jackie Dennis, who alleges that she is a survivor of sexual abuse at the hands of retired priest Neville Rucker, said, "It’s so sad that the church is fighting tooth and nail. But all it takes is a few cases to show what has really been going on.