April
18, 2002 10:00 a.m. Legal
Games
How dioceses can still withhold the truth.
ore
Roman Catholic dioceses are turning their personnel files over to district
attorneys, and are finally being completely open about accusations against
their priests — right? Not so fast, say lawyers who have represented
priest-abuse victims. Bitter experience, they say, shows that the Church
isn't above considering strategies to keep crucial documents out of personnel
files, and thus out of the hands of plaintiffs and, perhaps, prosecutors.
"If you're dealing
with a diocese that's completely dishonest and corrupt, and there are
some that fit into that category, the bishop will try almost anything,
and if his attorneys are not honorable men, they'll play tricks,"
says Sylvia Demarest, the Texas lawyer who won a landmark $119 million
judgment against the Diocese of Dallas.
"Based on my dealings with the Diocese of Bridgeport [Conn.] and
the Church since 1993, I would be very skeptical of information that bishops
voluntarily produce at this point, because for the past nine years here,
they were fighting all the way to hang on to documents, and were publicly
denying information we now know was completely true," says Jason
Tremont, whose Connecticut law firm represented 24 alleged victims of
Bridgeport priests in a case that has now been settled.
"Welcome to litigation," says Patrick Schiltz, interim dean
of the University of St. Thomas School of Law, who has defended dioceses
in lawsuits in each of the 50 states. "Every lawyer who litigates
cases knows he has to ask for documents in just the right way. I've seen
this game played a ton on the other side, which you never read about in
the papers."
What are some of the sleight-of-hand personnel-file maneuvers district
attorneys should watch out for?
Documents
could be in the diocese's lawyers' files. "In discovery depositions,
what occurs is that a key document is found in the files of their law
firms. If another case comes along involving the same priest, that document
won't be in the personnel file," says Stephen Rubino, a Margate,
N.J., lawyer who specializes in clergy sex abuse cases. "There was
a witness I just took trial testimony from in which he said the document
in question had been released to the law firm, and no copy was made of
it."
Personnel
documents can be stored in other Church files. "In the Rudy Kos
case, everything was still in his personnel file," says Demarest.
"But in the case of Fr. Robert Peebles, there was a secret archive
file that contained information on his court martial, the reoffense, his
laicization, and other matters. That's why when I filed the request for
information, I specified any information about this particular priest
that would be in the secret archive."
By canon law, each diocese is required to keep a secret archive, accessible
only to the bishop and the vicar general, where records of gravely serious
matters, such as sexual abuse by priests, are stored. Canon law also requires
that records be purged from the secret archive every 10 years, but a "summary
file" of the information in the purged documents is supposed to be
maintained. But, says Rubino, there are "no checks and balances,
and nobody monitoring to see if this is being done."
"We've also had files designated 'separate archives,' 'confidential
archives,' 'parish files,' and so forth," Rubino says. "I've
had cases where molestation complaints against priests are put in the
victim's file, when the victim has been a seminarian."
Psychiatric
evaluations and therapy records of accused priests may not be in the personnel
file. These are important because they can be used to establish what
a diocese knew of the priest's condition, and when it knew it. These are
often kept separate from the personnel file. Says Rubino, "Oftentimes
the interim reports are destroyed or sent back to the treatment center."
Similarly, say lawyers, files documenting what the diocese paid to settle
claims against particular priests are sometimes kept out of the personnel
files.
If prosecutors want to be sure dioceses aren't playing games with these
records, lawyers say, they should explicitly request all information a
diocese has on a priest in question. And even then they are taking a chance
on the diocese's good faith. "It's great to have a policy of openness,
but actions speak louder than words," says Tremont, who says invoking
subpoena power is the only sure way to make sure authorities get all relevant
records.
Schiltz says that whenever he has defended dioceses, he has made a policy
of disclosing all relevant documents up front, as the best way of protecting
his client's interests. "I didn't want the judge or jury later on,
when the second or third wave of requests came, to think that I was screwing
around."
Attorney Demarest says that the rapidly changing legal and political environment
surrounding these cases makes it much more costly for a diocese to withhold
documents. In the recent past, if the local legal establishment was predisposed
to favor the bishop, and there was no public price to be paid for doing
so, a diocese's lawyers had much more room to maneuver.
"I think we're seeing the opposite situation now, where politics
make it untenable to continue with that kind of thing," she says.
Schiltz agrees. "Churches shouldn't do that, plaintiffs shouldn't
do that, but attorneys on both sides sometimes play this 'gotcha' game.
It will be much harder to do that now, with all that's happened. That
said, I can't say it went on a lot before."
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ore
Roman Catholic dioceses are turning their personnel files over to district
attorneys, and are finally being completely open about accusations against
their priests — right? Not so fast, say lawyers who have represented
priest-abuse victims. Bitter experience, they say, shows that the Church
isn't above considering strategies to keep crucial documents out of personnel
files, and thus out of the hands of plaintiffs and, perhaps, prosecutors.
Documents
could be in the diocese's lawyers' files. "In discovery depositions,
what occurs is that a key document is found in the files of their law
firms. If another case comes along involving the same priest, that document
won't be in the personnel file," says Stephen Rubino, a Margate,
N.J., lawyer who specializes in clergy sex abuse cases. "There was
a witness I just took trial testimony from in which he said the document
in question had been released to the law firm, and no copy was made of
it."
