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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."