Mahony Resources – April 1–4, 2003
By David G. Savage
WASHINGTON -- The Supreme Court debated two California cases Monday that could shape the future of law enforcement, one to decide whether sex crimes from the distant past can be prosecuted now and the other to decide whether county sheriffs can carry out raids on Indian reservations.
California is the only state to have repealed its time limit for filing charges for sex crimes against children.
And if the state wins in the high court, Bush administration lawyers say they will press for new national laws that would allow prosecutors to reopen old cases where DNA evidence is found.
"This could be a watershed in the law," says Seattle attorney Jeff Fisher, who represented the National Assn. of Criminal Defense Lawyers in the case.
The outcome could affect dozens of prosecutions for old sex crimes. It could also have some effect on the civil suits involving priests accused of sexual molestation, because a criminal conviction can be used to bolster a lawsuit seeking damages.
However, if the high court strikes down the California law, the ruling could be used by defense lawyers to limit inquiries into allegations of sexual misconduct from the past.
Until now, most legal experts have assumed the Constitution's ex post facto clause bars the government from reopening a case after the time limit for prosecution has expired.
But the California Legislature in 1994 repealed the time limit for filing charges against the perpetrators of sex crimes against people who were younger than 18 at the time.
To screen out false claims, the law also said prosecutors must have "independent evidence that clearly and convincingly corroborates the victim's allegations."
Under the new law, Marion Stogner, a 70-year-old Contra Costa man, was charged in 1998 with sexually molesting one daughter from 1955 to 1964 and another daughter from 1967 to 1973.
He contended the charges were an after-the-fact punishment, because the time limit for filing most sex charges in California was three years.
The California Supreme Court rejected the same challenge in a separate case in 1998.
Nonetheless, the U.S. Supreme Court took up Stog-ner's appeal, and the justices sounded closely split during Monday's argument.
"The state of California is bound by its laws and its degrees. And we have a vested right to be free from prosecution and punishment" after the time limit has expired, said Roberto Najera, a public defender from Martinez, Calif., who represents Stogner.
"This court should hold the state to the bargain it made."
But Janet Gaard, an assistant attorney general from Sacramento, said the state had not changed the crime or the punishment for it.
"This does not criminalize conduct that was innocent when it was done," she said. Stogner knew his abuse of his daughter was a crime in 1955 or in 1967, Gaard said. He had "a fair warning," she said, so the state has not reneged on a bargain.
Four liberal justices -- Ruth Bader Ginsburg, David H. Souter, John Paul Stevens and Stephen G. Breyer -- voiced skepticism about the state's case.
"This is reviving a dead case," Ginsburg commented. "And you are making an across-the-board argument," she added, not limited to crimes against children.
While the state law reopened cases involving past crimes against children, its legal brief argued that the government could reopen past criminal cases of all sorts without violating the ex post facto ban.
Bush administration lawyers joined the case on California's side, arguing that Congress too can revive old cases by repealing the time limits.
Breyer said he was taken aback by this claim.
"I had thought this was absolutely contrary to the Constitution. What has changed?" he asked.
A Justice Department lawyer replied that the high court had never said it was unconstitutional to reopen cases after the time for prosecution had expired.
Stevens said that was so because it was presumed to be unconstitutional. "Is there any precedent of this court that supports this view?" he asked, referring to California's argument.
No, the government lawyer acknowledged.
However, Chief Justice William H. Rehnquist and his conservative colleagues disputed the public defender's claims.
"We have to take state law the way it comes to us, and the California Supreme Court didn't see it" as increasing the punishment for a past crime, Rehnquist said.
Because the state is not creating a new crime or increasing the punishment for an old crime, the repeal of the time limits does not violate the ex post facto principle, he suggested.
California has no time limit for bringing charges of murder, embezzlement of public funds and a few other crimes that carry a life prison term. But most felonies must be charged within three years.
These statutes of limitation are intended to help police and prosecutors deal with fresh cases. They also protect defendants from being accused of crimes years after the fact, when it might be hard to find evidence or witnesses to rebut the charges.
But these time limits also meant the sexual abuse of children often went punished. That concern prompted the 1994 repeal.
The case is Stogner vs. California, 01-1757.
In the second case debated Monday, the court struggled to clarify when state and county police can enforce the law on Indian reservations.
Generally, state police can go after individuals for crimes, including on reservations, but the tribes and their operations are shielded by the doctrine of "tribal sovereignty."
But sometimes, the line between the two is unclear.
Three years ago, Inyo County prosecutors believed three workers at a tribal casino in Bishop were welfare cheats.
They asked the tribe for its payroll records and were turned down. Then, armed with a search warrant, they raided the reservation, cut the locks in a storage room and seized the records.
The tribe sued, and last year the U.S. 9th Circuit Court of Appeals ruled that the prosecutors could be held liable for violating tribal sovereignty.
"This could have disastrous consequences," said John Kirby, a lawyer for the Inyo prosecutors. State and county police need to be able to enforce the law, he said.
But a lawyer for the tribe, backed by the Justice Department, said its sovereignty should be respected.
The justices said they were searching for a narrow way to resolve the case, perhaps by ruling that commercial records can be seized.
"This [casino] was a commercial operation, not the [tribal] government itself," said Justice Antonin Scalia.
The case, Inyo County vs. Paiute-Shoshone Indians, 02-281, will be decided
within several months.
L.A. Archdiocese Seeks to Withhold Files in Sex Cases
By William Lobdell and Richard Winton
Nearly 2,000 pages of church documents should be kept from Los Angeles prosecutors seeking to charge priests with sex crimes, attorneys for the L.A. archdiocese said in court Tuesday, arguing the information is confidential under religious protections of the Constitution.
A Los Angeles County grand jury last summer subpoenaed the records, which prosecutors contend will support allegations by more than a dozen adults who say they were molested as children by priests.
Lawyers for the archdiocese said Tuesday that release of the documents would violate fundamental tenets of the faith, including that of a penitent to a confessor, among others.
"Few priests will be candid and open unless these essential disclosures, these manifestations of conscience, are maintained in confidence as the archdiocese always has carefully done," said Donald Woods, an attorney for the church.
The courtroom testimony Tuesday was the first open discussion of the criminal investigation of local priests by the Los Angeles County district attorney since the allegations were first reported a year ago.
One defense attorney said Los Angeles prosecutors are on a "legal jihad" against priests.
But prosecutors, in part of a sharp series of exchanges, said the files -- which they believe contain admissions of guilt -- are essential to their criminal investigation.
They also accused the archdiocese of conspiring to keep reports of child molestation from authorities and attempting to hold the church above the law.
"I've yet to see a right or privilege for someone who molests a child to get a free pass," said Deputy Dist. Atty. Bill Hodgman, the chief prosecutor in the clergy cases.
"We need look no further than Boston," Hodgman said, to see the significance of the church documents. A court-ordered release of thousands of pages of documents in Boston early last year fueled the Catholic Church's national sex scandal and led to the resignation of Cardinal Bernard Law, the Boston prelate.
The Los Angeles archdiocese has turned over the documents sought by prosecutors to retired Superior Court Judge Thomas F. Nuss, who heard the arguments Tuesday. He said he will rule soon in the case, which will have a broad effect on investigations of more than 100 Los Angeles-area priests.
The district attorney's office said it plans to seek scores of additional grand jury subpoenas.
Dist. Atty. Steve Cooley, who watched Tuesday's proceedings, said the church documents will provide the best evidence.
Deputy Dist. Atty. Steve Katz accused the archdiocese in court of conspiring to withhold from authorities allegations of child abuse between 1980 and 1996. He said no cases were reported to police during that time by archdiocese therapists who allegedly heard priests admit to molesting children.
"I thought it was irresponsible," said J. Michael Hennigan, a lawyer for the archdiocese, after the hearing. "There is no evidence in these records or anywhere of a conspiracy."
Lawyers for the Archdiocese of Los Angeles and accused priests argued that releasing the church documents would hinder priests from speaking freely with their mentors about the most intimate parts of their lives without fear of public disclosure.
Releasing the information, the attorneys argued, would violate a number of privileges protected by state and federal law, including freedom of religion.
"No man, no priest would come forward unless he knew, as all priests are promised, that this would be confidential," Woods said.
Woods and Donald Steier, an attorney for several accused priests, argued that the church already has given prosecutors enough information to investigate the allegations, including the names of victims disclosed in the files, periods of therapy of all accused priests and the new assignments of the priests.
Woods said a judge in Ventura County ruled in favor of the church last month in a parallel case.
"Clearly what we have is a fishing expedition in the most intimate of waters," Steier said. "It's the people's legal jihad against their perceived molesters."
Prosecutors accused church officials in court of using the Constitution to hide incriminating evidence of sexual abuse by their priests. Cardinal Roger M. Mahony said last year that he would cooperate fully with authorities investigating the molestation cases.
"The archdiocese had an ongoing pattern of obstruction," Cooley said. "And in my 29 years as a prosecutor, I've never seen that many objections.... The only thing they left out was the spousal privilege."
Prosecutors said a church investigation into allegations of molestation is not covered by the religious privilege that protects the private confession of sins to a cleric.
Deputy Dist. Atty. Brentford Ferreira said that in every case his office has investigated so far, the priest did not initially confess to molesting minors. Instead, a church inquiry was launched after it received information from a third party. The church's investigation, he said, is not protected under state or federal laws.
"The church is attempting to set itself above the law, and it simply cannot do that," said Ferreira. He said other dioceses have turned over similar information to authorities.
As church attorneys and prosecutors squared off in court, the state Assembly unanimously passed a bill to prevent the clock from running out on the criminal prosecution of Los Angeles priests accused of sexual abuse.
The bill is expected to be heard Thursday in the state Senate.
The bill, which faced no opposition, is expected to be signed by Gov. Gray Davis by the end of the week.
The U.S. Supreme Court on Monday heard arguments challenging the California law that allows the prosecution of sex crimes from the distant past.
Because nearly all the Los Angeles-area priests under investigation are accused of sexual abuse a decade or more in the past, the Supreme Court's decision could affect scores of cases.
Staff writers Nancy Vogel and Jean Guccione contributed to this report.
LA Archdiocese argues against release of priest files
By Sandra Marquez
LOS ANGELES- Prosecutors have gone to court in an effort to compel the nation's largest Roman Catholic archdiocese to hand over the personnel files of priests accused of sex abuse so they can file charges and victims can sue.
"Some of the facts in these cases, your honor, would simply churn your stomach," Deputy District Attorney William Hodgman said during a Tuesday Superior Court hearing. Archdiocese attorney Donald Woods countered that the records are "on the other side of the wall that separates the church from the state."
Retired Judge Thomas F. Nuss, who has been appointed special referee to resolve the matter, did not immediately rule. Prosecutors said afterward they do not expect a decision before May.
At issue are three kinds of confidential records _ reports by people claiming abuse by priests, upper-level clergy's intervention interviews of priests and priests' psychological evaluations.
"Victims have a right to have justice and a child molester should be accountable for what they did, and we can't have that unless we have access to these documents," Deputy District Attorney Irene Wakabayashi of the sex crimes unit said after the hearing.
Woods contended that prosecutors do not need the documents to pursue charges, and in any case they are privileged.
"We do not dispute that priests should be prosecuted for child molestation," Woods said. But the church does "challenge subpoenas that violate spiritual-pastoral counseling," he said.
Cardinal Roger Mahony, who heads the archdiocese, did not attend the hearing. The archdiocese, in a prepared statement, said the disputed records are in the court's possession and will be handled according to Nuss' ruling. Records were turned over as a result of previous grand jury subpoenas.
In a related development, Assembly members on Tuesday passed a bill 76-0 to give victims of alleged Los Angeles priest abuse more time to make their cases and make it harder for defendants to delay with legal maneuvers.
The state Senate scheduled a hearing on the bill Thursday in its Public Safety Committee, and possibly a full Senate vote.
It would then go to Gov. Gray Davis, who released a statement Tuesday saying his top priority was "protecting our children."
"We should do all we can to prevent child abusers from getting off on a technicality," he said.
The bill, pushed by Los Angeles County District Attorney Steve Cooley and carried by Assemblywoman Fran Pavley, D-Agoura Hills, aims to extend time to gather documents and other evidence.
Under state law, when a victim of child sexual abuse reports an allegation, authorities have one year to gather evidence to make a case and press charges. But prosecutors maintain that defendants' attorneys can easily run out the clock by mounting legal challenges to subpoenas.
The bill would freeze the clock while judges consider those challenges.
Meanwhile, the Diocese of San Bernardino demanded Tuesday that Boston church officials pay any damages that might be awarded to a man who says he was molested by a priest transferred from Boston to San Bernardino.
San Bernardino church officials say the Archdiocese of Boston assured them the Rev. Paul Shanley was in good standing when he transferred from Boston. Church documents have since revealed that Boston archdiocese officials had received allegations about Shanley dating to the 1960s and knew about public statements he had made advocating sex between men and boys.
Shanley was charged in May with raping four boys at a Newton, Mass., church from 1979 to 1989. He has pleaded innocent and is free on bail awaiting trial.
A suit filed in January also accuses him of having sex with a 17-year-old boy in San Bernardino in 1990 and of persuading the teenager to have sex with other men. The action, which is awaiting a trial date, seeks unspecified damages.
The 1.1 million-parishioner Diocese of San Bernardino has filed a court petition denying responsibility for Shanley's actions and asking that any damages be paid by the Archdiocese of Boston.
Boston archdiocese officials said they hadn't yet seen the petition and could not comment.
Associated Press Writers Robert Jablon in Los Angeles and Jim Wasserman
in Sacramento contributed to this report.
Los Angeles Archdiocese Tries to Shield Documents
By Calvin Sims
Los Angeles - As sexual abuse scandals engulfed the Roman Catholic Church nationwide last year, Cardinal Roger M. Mahony of Los Angeles won praise for his promise to be an advocate for victims and to provide a full and open accounting of what happened here in the country's largest archdiocese of five million Catholics.
Today, advocates and lawyers for people who say they had been abused by priests labeled Cardinal Mahony a backbiter and a traitor, after the Archdiocese of Los Angeles went to court to avoid turning over internal church documents about priests being investigated for sexual abuse.
At a hearing in Los Angeles County Superior Court, lawyers for the archdiocese said it has a constitutional right to hold onto church documents, which they said contained privileged information exchanged by Cardinal Mahony and priests accused of sexual assault.
Confidentiality between a bishop and a priest is a central tenet of Catholicism and if violated would infringe upon the church's First Amendment right to free practice of religion, the lawyers argued.
William Hodgman, head deputy for the sex crimes division of the Los Angeles County district attorney's office, said the archdiocese's effort was a "stalling tactic that although disappointing was not entirely unanticipated."
He said he believed the court would reject the archdiocese's argument, citing unsuccessful efforts to block the release of church files by other archdioceses embroiled in sexual abuses scandals.
The district attorney is seeking the archdiocese records as part of cases it has brought against six priests charged with sexual abuse. Prosecutors are also looking into accusations against dozens of other priests.
"If the court overrules the objections of the archdiocese, it will be a significant step forward because we can obtain documents that have credible evidence to support our charges," Mr. Hodgman said.
While the court is expected to render a decision this week, the prosecutor said that he expected any ruling to undergo numerous appeals and further delays.
Mary Grant, the southwest regional director for the victims group Survivors Network for those Abused by Priests, said the archdiocese's effort to withhold documents would mean that victims would have to "live longer and longer with the pain of having their abuse hidden and covered up."
"Cardinal Mahony has not kept his promise to protect children," she said. "Instead he has done everything possible to protect child molesters, who are priests."
Ms. Grant said it was appalling that the Los Angeles archdiocese would have to be forced by court order to turn over the documents, while other archdioceses had done so voluntarily. Her group represents 4,500 people across the country who say they were abused by priests.
Neither Cardinal Mahony nor Tod Tamberg, director of media relations for the archdiocese, returned telephone calls to their offices. The church declined to make its lawyers available for official comment.
Lawyers close to the Los Angeles Archdiocese said Bishop Mahoney's office had sought to keep the files confidential because the contents -- his private conversations and counseling of priests accused of sexual abuse -- could prove embarrassing. The lawyers said prosecutors hoped to use the documents to show that church officials had either tried to cover up the sexual abuse or failed to adequately police priests they knew were offenders.
In addition, the lawyers said the release of such information, given in sanctuary and thought to be protected, could discourage priests from seeking crucial guidance and counseling from the church hierarchy on a wide range of issues, not only those regarding sexual abuse.
Sexual abuse cases against priests in California have gained national attention because of a law passed by the state Legislature that lifted the statue of limitations on sexual abuse lawsuits for one year, starting Jan. 1. The law allows plaintiffs to sue churches or other institutions, like hospitals and schools, that knowingly permitted molesters to have access to children or minors.
With the new law and Cardinal Mahony's pledge of openness, there was growing optimism that the sexual abuse cases in California could be resolved in swift and cooperative manner, without the antagonism and bitterness that has plagued the process in Boston and elsewhere.
Lawyers for plaintiffs said a court ruling requiring the archdiocese to release the documents sought by the prosecution would be a big help to civil cases they are bringing against the church.
"It would certainly help our cases, and provide us with the documentation we are also seeking," said Raymond P. Boucher, a lawyer representing 200 victims in Southern California.
"The problem is that the church has not yet learned its lesson," Mr. Boucher said. "As long as Mahony continues to fight to protect these molesters and predators and continues to withhold the evidence of their conduct, the more he continues to scar these victims and undermine the credibility and moral authority of the church."
Since the new law went into effect, Mr. Boucher said, there has been a steady increase in people who have contacted lawyers with an intent to file a civil case against the archdiocese. He said that there were 300 cases in Los Angeles and about 600 cases statewide that were being prepared. Based on the number of priests accused of sexual misconduct and their pattern of abuse, Mr. Boucher estimated that as many as 4,000 people in Los Angeles were victims, although he said most are unlikely to come forward and file a case.
Katherine K. Freberg, a lawyer in Orange County who represents about
80 plaintiffs, said the archdiocese's refusal to turn over documents was
a main reason for the failure of a 90-day agreement, which expired on
Monday, between the plaintiffs and the church to delay litigation in favor
of mediation. "We are still talking but the major glitch was Mahony's
refusal to provide full disclosure," Ms. Freberg said. "We are
going to see if the church is serious about statements or wants to resolve
the cases, and if it's not we will go forward with the flood of cases."
AB 949, Pavley. Criminal procedure: limitations of time
State of California
BILL NUMBER: AB 949 CHAPTERED
INTRODUCED BY Assembly Member Pavley
FEBRUARY 20, 2003
An act to amend Section 803 of the Penal Code, relating to
LEGISLATIVE COUNSEL'S DIGEST
(b) No time during which prosecution of the same person for the
(A) The limitation period specified in Section 800 or 801 has
(A) The limitation period specified in Section 800 or 801 has
(2) Nothing in this subdivision affects the definition or
A Pending Supreme Court Case Addresses Ex Post Facto Laws:
By Vikram David Amar
This column is Part One of a two-part series by Professor Amar on the Constitution's Ex Post Facto clauses. - Ed.
On March 31, the Supreme Court heard arguments in Stogner v. California, a case involving the Constitution's ban on ex post facto laws. The Court's decision, which will be issued in the coming months, is likely to shed significant light on its current thinking about this important prohibition.
The prohibition itself derives from two separate Ex Post Facto Clauses in the Constitution - one limiting the States, and the other limiting the federal government. Unfortunately, both clauses simply forbid the passage of "ex post facto Law[s]" without further defining that term. As a result, the precise scope of the constitutional ban is not entirely clear.
Everyone agrees that the idea of retroactivity is key to understanding ex post facto, and that some retroactive criminal laws are unconstitutional under the clauses. But which, exactly? A law purporting to make past behavior that was innocent when undertaken the basis for current criminal liability is plainly an ex post facto law. But what about a law that effects some change less drastic than making innocent behavior criminal - for example, a law extending the period during which always-criminal behavior can be prosecuted?
Citizens, lawyers, and law professors don't talk much about ex post facto issues, and the Supreme Court doesn't decide many ex post facto cases. For this reason, it is especially important for the Court to get each such case right. In Stogner, though, that may not happen - for reasons I'll explore in this column and the next.
The Facts of Stogner, and the Ex Post Facto Challenge
Marion Stogner's daughters allege that, between 1955 and 1973, he sexually molested them. During that time period, the statute of limitations for a criminal complaint of child molestation was three years after the crime was alleged to have occurred.
In 1994, the California legislature passed a law saying that, effective January 1, 1994, a criminal complaint against a serious child molester need not be filed within this three-year period. Instead, it may be filed within one year of the date the victim first reported the crime to a California law enforcement agency, provided there is "independent evidence [that is, evidence apart from the victim's report and the opinions of mental health professionals] that clearly and convincingly corroborates the victim's allegation."
In 1998, Stogner's daughters complained of the alleged molestations, and offered independent evidence to support their accusations. Within a year, a criminal complaint was brought.
The daughters claim their suit was timely under the 1994 law. But Stogner argues that under the Ex Post Facto Clause limiting States, the 1994 law is unconstitutional as applied to him. He contends that the three-year statute of limitations governing his alleged misconduct expired long ago. And he says that California cannot constitutionally revive these charges through the 1994 law.
Certainly, to apply the 1994 law to incidents occurring in 1955-73 is to apply it retroactively. But is this the kind of retroactive application of a criminal law that the Ex Post Facto clauses prohibit? That is the question the Supreme Court now must answer.
The Essence of Ex Post Facto
To the Framers, these clauses were so urgent that they were embodied in the original 1787 document - not the Bill of Rights, enacted a few years later. As this history indicates, we are dealing with a basic principle - one that the People of the United States from the outset felt should command nearly universal agreement in a free Republic.
At its core, the principle is this: Congress and state legislatures may not later make conduct criminal that was perfectly lawful when done. In other words, if conduct is legally innocent at a given time, when undertaken by person, a legislature may not pass, at some later time, a law that says the person's conduct at the prior time now can be the basis for criminal liability.
The justifications for this ban are both powerful and simple. Indeed, they are so powerful that ex post facto laws probably would be held implicitly unconstitutional, under several other provisions, even if they were not expressly banned in the Constitution.
First, ex post facto laws violate the separation of powers. When a legislature makes an ex post facto law, it knows (or at least is able to know) whom it is transforming into a criminal. But it is the job of the executive branch and the courts - not the legislature - to mete out punishment against individuals. Legislatures, by contrast, are supposed to make rules of general application that have nothing to do with individual personalities. (In this regard, the ban on ex post facto laws is related to the clause banning Bills of Attainder - that is, legislative punishments naming particular individuals.)
Second, ex post facto laws may violate First Amendment principles. Legislatures could easily use them to transform political enemies into "criminals" based on previous, then-non-criminal behavior. The "chilling effect" to speech would be severe. And the First Amendment is designed, at its core, to allow dissent from existing government policies to flourish.
Third, ex post facto laws are unfair - and thus also implicate broader notions about constitutional due process. Two of the most elemental principles of due process are these: The government must provide individuals with proper notice of the consequences of their actions. And, the government may not undermine legitimate reliance by individuals based on messages the government sends.
Thus, if a prosecutor promises, before you jaywalk, that he will not prosecute you, he should be bound by that promise if you rely on it. Similarly, if a prosecutor promises you a plea bargain, he should not be able to back out after you have confessed the crime.
In short, the ex post facto ban is an illustration of an overarching constitutional concern with systematic unfairness. Government has to treat individuals - even criminals - with dignity, respect and basic honesty.
Is the California Law At Issue in Stogner Ex Post Facto?
Given these background principles, here are a few questions the Court should be asking itself in Stogner: What are the purposes behind the original, three-year statute of limitation? Through this law, did the government send an important message inducing meaningful reliance by individuals?
Suppose, on the one hand, that a statute of limitations is merely a rule of practical necessity. It exists only because memories fades, documents are lost, and we simply have reduced confidence in trials that take place long after crimes occur because of evidentiary problems.
From this perspective, California's retroactive change seems more defensible and less unfair. After all, the new 1994 law allows for prosecution only where there is independent corroborating evidence of the victim's allegations.
Indeed, perhaps retroactive changes similar to this one can actually improve justice: Consider a complaint that could not have been filed in the past because of evidence-collecting limitations - say, due to imperfections in DNA testing. Shouldn't that complaint be able to be filed today if there are improvements in evidence-gathering or analysis - say, improved DNA tests?
If that is true, California's stance here looks more justified. Suppose that, at one point in time, adults' testimony about events that allegedly took place when they were children was not judged to be trustworthy. But suppose also that today, social science and other data today may indicate that such after-the-fact allegations are reliable evidence indeed. Shouldn't the new science be able to be reflected not only in evidence rules, but also in retroactive statute of limitations extensions in cases that authorities once were reluctant to prosecute, but are now are willing to pursue?
But suppose, on the other hand, we view a statute of limitations like a Presidential or gubernatorial pardon - absolving moral and criminal culpability - that is issued after the existing statute of limitations period has run.
From this alternative perspective, California's retroactive change looks worse. California struck a deal with individual citizens about how wrongful it would consider their deeds committed in the distant past. Now it's reneging on the deal.
In a related vein, if individuals (like Mr. Stogner) who committed acts that were criminal when done could show how they reasonably relied on the three-year statute of limitations law, in moving on with their lives after the statutory period had run, then such reliance should perhaps be respected. Or if individuals could show that they tossed aside exculpatory evidence after the statute of limitations period had expired because they thought they were in the clear, we should take account of that too.
Which Is the Better View of Statutes of Limitations, For Ex Post Facto Purposes?
My own tentative view favors the first perspective. That is, I tend to believe that statutes of limitations exist because of practical litigation difficulties - not because of the state's desire to pardon or exonerate knowing criminals after the statutory period has run.
Exclusionary rules provide a strong analogy: Under these rules, wrongfully obtained but relevant evidence is kept out of courts. The idea isn't that the person has not committed a crime, but rather that another value - respecting Fourth Amendment rights - trumps. Similarly, statutes of limitation arguably do not negate criminality, when they expire; they say only that, at that point, another value - avoiding waste of resources when the state lacks strong enough evidence to win at trial - trumps.
What about reliance? A political protester who counts on his speech not being criminal has an excellent reliance argument. A criminal who knowingly molests children, in violation of clear and time-honored bans on such conduct, does not - for several reasons.
First, certainly a criminal does not "rely" on a short three-year statute of limitations period in deciding to commit the crime in the first place. Only the most foolhardy criminal could claim, "I assumed they'd never catch me; after all, they only had three brief years to investigate and bring a complaint." And even if he did, why would we credit that kind of reliance?
Second, I don't think a child molester can say "once the statutory period had expired, I thought I was in the clear, so I moved on with my life." The reality is that criminals move on with their lives whether or not they think they are in the clear. Nor do I believe that child molesters can easily claim that they discarded exculpatory evidence in reliance on the statute of limitations having run.
By comparison, statutes of limitation in the civil realm (in areas such as tort and contract law) implicate far more real-world reliance: Businesses make investments taking into account when they will expire. An acquiring company must account for potential liabilities of the company it's buying before, but not after, the relevant statutes of limitations have expired.
The comparison is significant, for in the civil realm, where there is more reliance, the Supreme Court has held that retroactive changes are perfectly permissible, despite due process objections.
A Change in Evidence, Or A Change in Criminality?
In sum, to my mind, California has not changed the basic rules of criminal conduct. It has always been unlawful to sexually molest your daughter. Everyone in that State has always been put on notice of that.
Instead, California has changed when and how such inherently wrongful conduct may be proven in court. That is akin to a change in evidentiary rules, not a change in the basic law of what is, and is not, a crime.
Even if I am correct, however, in viewing Stogner's case as similar to one involving a change in the rules of evidence, the State of California may not win. That is because a wrongheaded ruling by the Supreme Court a few years ago, Carmell v. Texas, suggests the Ex Post Facto Clauses apply to all significant changes in evidentiary rules.
In my next column, I will consider what led to that erroneous Carmell
ruling, how the error there may influence Stogner's case, and how the
fate of various recent Congressional statutes may be linked to Stogner's.
Law Gives Time to Prosecute Sex Abuse
by Jim Wasserman
Gov. Gray Davis signed a bill on Thursday giving prosecutors more time to press charges in potential child sex abuse cases stemming from decades-old allegations.
The law could help authorities investigating 19 potential sex abuse cases involving Los Angeles priests where time limits were set to expire beginning Monday.
But the law's future is uncertain - the U.S. Supreme Court is hearing a case that challenges whether California can legally prosecute decades-old molestation charges. A decision is expected in July.
California prosecutors used to have one year to press charges after receiving accusations of child sexual abuse. But the law was changed after prosecutors claimed defenders of suspected Los Angeles priests were running out the clock on the time limit by challenging their attempts to gather evidence.
The Archdiocese of Los Angeles says the documents prosecutors want are confidential. The new law would stop the one-year clock from running while judges consider the merits of defense challenges.
A spokesman for the archdiocese declined comment Thursday. The Sacramento-based California Catholic Conference, which speaks on church public policy, reported no position on the bill.
The Supreme Court will rule on a 1994 California law that allows prosecutors to bring charges within a year of a victim informing police, no matter how long ago the abuses took place. Before 1994, authorities had to bring charges within three to six years of the crimes being committed.
The bill signed on Thursday eliminates the one-year requirement if a suspect is challenging a grand jury subpoena for evidence.
Also Thursday, a defrocked priest charged under the 1994 law pleaded innocent to molesting a female relative more than 40 years ago while assigned to a Catholic high school.
Matthew Michael Sprouffske, 76, remained free on $25,000 bail pending a hearing to determine if he must stand trial on four counts of committing lewd acts with a minor under 14. He was removed from the priesthood last April.
In other news stemming from the nationwide clergy abuse scandal:
- Two men sued Pennsylvania's Altoona-Johnstown diocese, its bishop and a former bishop, alleging they failed to protect them from being molested by priests who had earlier been accused of abuse.
One of the plaintiffs, Darrin Mangiacarne, 25, alleges that Monsignor Thomas Mabon molested him while he was an altar boy in a Hollidaysburg church from 1988 to 1990. Mabon told Mangiacarne the abuse "would serve as penance for his confession," the lawsuit said.
Reached at his home in Johnstown, Mabon denied the allegations.
Making distinctions: a bishop defends his actions
Interview by Arthur Jones
Attorney John Manly illustrated the hierarchy’s attitude toward sex abuse by paraphrasing a June 19, 2001, deposition he took from Bishop Norman F. McFarland, now retired bishop of Orange.
“I asked the bishop, ‘Would you ever put a predator who had molested a child back in a parish?’ ‘No.’ ‘Would you ever put a predator who had molested a child back into a parish with a school?’ ‘No.’ ‘Would you ever, ever put a predator back in parish circulation knowing he was a predator?’ ‘No.’
“ ‘Your Excellency, could you please explain why John Lenihan was a pastor at St. Edward’s?’
“ ‘Well,’ he said, ‘that’s different.’
“ ‘What do you mean, sir?’
“ ‘You said child molester. As I understand it, these victims were adolescents. And you know many adolescents are fully developed and precocious.’ ”
Said Manly to the meeting, “Ladies and gentlemen, that is a view of the soul of the hierarchy of our church. That is what is at stake here.”
NCR asked McFarland how he remembered the exchange. The bishop sent the deposition. Excerpts follow:
Q (Manly): Was it your policy while bishop that someone who you believed was a child molester would not be a priest in the diocese of Orange?
A: Of course, of course.
Q: Your Excellency, can you explain why John Lenihan has administered the sacraments and is functioning as priest if this was the case?
A: There was a charge brought against him by a Mary Staggs. That’s while I was bishop here. That was early in 1990-91. In fact, she entered a court case against him, and the allegation was that some 15 years earlier a Fr. John Lenihan, who was a young priest not long ordained, at St. Norbert’s, had sexually molested her and this was pursued.
I gave a deposition. Also there was the request of the plaintiff and her lawyer that he receive therapy, and also there was payment of money. … And he’s now the pastor of St. Edward’s, and I appointed him there about 1995 at the recommendation of the priest personnel committee.
I did not see any reason why he should not go there from his record. That is, he had admitted publicly even as I recall to the people of St. Norbert’s that he had been guilty of this sexual conduct with an adolescent.
When he went down to St. Edward’s he informed them. … Anyway, to answer your question directly, he had served well. There was no indication even approaching this kind of conduct, improper sexual contact.
Q: Has anybody from the National Conference of Catholic Bishops, the Holy See or any other Roman Catholic institution ever provided your excellency with data on the recidivism rate of child molesters?
A: Yes. I think in the national meeting … but you used the term “child molesters,” and they make a distinction between those of “pedophilia,” like youngsters. Those that are adolescents.
Q: Does it make any difference to you in terms of how you handle priest matters where the priest abused a 3-year-old or sexually abused a 17-year-old?
A: Yes, there is a difference.
Q: What is the difference?
A: From what I have learned the experts say that pedophilia I don’t think is recoverable.
Q: How about a 15-year-old girl?
A: Well, that is also very wrong. But I think there is more a chance for a person that, first of all, being an isolated incident … I can understand the temptation of that more. It can’t even occur to me with a child or a baby. Does one make a distinction that’s 15 or 17? She may be very, very precocious or adult-looking, and there would be temptation there.
(In addition to the Staggs case, Lenihan was later accused of molesting
and impregnating another teenage girl in the 1980s and forcing her to
have an abortion. Lenihan resigned from the priesthood in 2002 after the
church paid out [$1.2] million in a settlement. The Los Angles archdiocese
paid $200,000, the Orange diocese $1 million.)
Resigned California bishop back in headlines
By Arthur Jones
Bishop G. Patrick Ziemann, who in 1999 resigned in disgrace from the leadership of the Santa Rosa, Calif., diocese, is in the news in Los Angeles and San Francisco, archdioceses in which he served.
In Los Angeles, where he was an auxiliary bishop to Cardinal Roger Mahony prior to his Santa Rosa appointment, Ziemann is reportedly under criminal investigation for sexual molestation.
The legal community’s newspaper, The Los Angeles Daily Journal, reported March 20 that Los Angeles “prosecutors and police are focusing on allegations that Ziemann, while serving under Mahony, molested a minor and aided in a cover-up of sexual abuse of children by other clerics.”
A day earlier, March 19, the SF Weekly in San Francisco ran an extensive article on Ziemann’s sexual and financial scandal in Santa Rosa, one of the dioceses that comprises the San Francisco province under the jurisdiction of San Francisco’s archbishop.
Ziemann, who left the Santa Rosa diocese $30 million in debt, was sued by a priest, Jorge Hume Salas, for forcing him into sex acts (NCR March 3, 2000).
The Weekly article aroused concern among Santa Rosa Catholics because it implied that Mahony and San Francisco Archbishop William Levada were working for Ziemann’s rehabilitation and return as a priest and a bishop.
San Francisco archdiocesan spokesperson Maurice Healy categorized the Weekly article as “in its entirety full of junk as it pertains to the archbishop. Ludicrous.”
Los Angeles archdiocesan spokesperson Tod Tamberg said the article was “filled with inaccuracies and innuendo. Cardinal Mahony is not involved in any so-called ‘rehabilitation’ of Bishop Ziemann.”
Ziemann today lives a life of relative ease in an Arizona monastery, with no discernible duties. He left behind in the Santa Rosa diocese 140,000 scandalized and demoralized Catholics. Some of their 42 parishes saw their millions in hard-saved funds invested by Ziemann and his officials in dubious schemes in Europe or spent on sexual scandal payoffs.
The closest Ziemann ever came to a public reprimand from his church superiors was Levada’s comment at a public meeting when Catholics called for Ziemann to go to prison.
Levada said Ziemann (and his vicar general) were “inept, but that’s not stealing. It is inappropriate to call for people to be imprisoned.”
Zeimann was never prosecuted for crimes or sued, except by the priest
he sexually abused, who wanted $8 million. The diocese settled for $535,000.
State Enters Fray on Access to Priests' Files
By Alan Cooperman
California enacted emergency legislation yesterday to stop the clock on its statute of limitations in child sexual abuse cases while the Los Angeles district attorney fights Cardinal Roger Mahony over access to priests' personnel files.
Lawyers for the Archdiocese of Los Angeles argued in court this week that the files are protected by the First Amendment and should remain confidential. District Attorney Steve Cooley, who has subpoenaed the records in a grand jury investigation, contends that they could help corroborate allegations that date back decades.
The epicenter of the sexual abuse scandal in the Roman Catholic Church has shifted this year from Boston to Los Angeles because of the grand jury probe and a deluge of civil lawsuits that imperil the finances of California dioceses.
The legislature stepped into the fray after prosecutors warned that, starting next week, some accused child abusers would go free because 10 months of wrangling over the church's files has eaten up the time in which prosecutors must file charges.
The emergency bill, which takes effect immediately, passed both houses unanimously this week and was signed into law by Gov. Gray Davis (D) yesterday afternoon. It freezes the legal clock on criminal cases until the dispute over personnel records is settled.
Facing Mahony's continued resistance, prosecutors accused the cardinal of reneging on his promise of full cooperation. They point to a statement by Mahony from last May: "We want every single thing out, open and dealt with, period."
Tod Tamberg, a spokesman for the archdiocese, denied that Mahony has changed his position or been uncooperative. He said the archdiocese turned over the names of accused priests, their alleged victims and the dates and other circumstances contained in its records. But, he said, the church does not believe that it should hand over psychotherapy reports and files on the "pastoral counseling" of priests by their bishops.
"It's in everyone's interest for this to be dealt with openly and honestly, so that we can begin the process of healing," Tamberg said. "At the same time, all the rights and privileges of all the parties have to be weighed. That's not backing away from openness. It's trying to reach justice in a balanced and fair way."
It is now up to a court-appointed special referee, retired Judge Thomas F. Nuss, to decide whether to unseal the records. Some legal experts predict that the Supreme Court ultimately will have to rule on the constitutional questions raised by prosecutors' efforts to obtain church files in dioceses across the country.
On Monday, the Supreme Court heard arguments in a related matter, the constitutionality of retroactively changing the time limits on prosecuting old cases of sexual abuse.
Recognizing that victims often bury their experiences in shame and silence, California's legislature decided in 1994 to repeal its three-year statute of limitations and allow victims of child sexual abuse to report such crimes at any time in their lives.
But the 1994 law stipulated that once a report is made to police, prosecutors have just one year to file charges and must present convincing, independent evidence to corroborate the victim's story. Prosecutors believe church files could provide such evidence.
The challenge was brought by Marion Stogner, 70, who was charged in 1998 with molesting his daughters more than three decades ago. He contended that the charges violated the Constitution's prohibition on ex post facto laws. The California Supreme Court rejected his argument in 1998, but the U.S. Supreme Court took it up on appeal.
Though the charges against Stogner have nothing to do with clergy abuse, a decision in his favor could reopen scores of convictions in California and undermine laws in many other states that have retroactively extended the time limits on sex abuse prosecutions.
California also has made a huge change in its statute of limitations
on civil lawsuits, opening a one-year window in 2003 for victims of child
sexual abuse to file claims, no matter how long ago the abuse occurred.
The resulting deluge of about 300 suits threatens the finances of dioceses
across the state, including the large Archdiocese of Los Angeles, which
forecasts a budget deficit of $5.7 million this fiscal year and has cut
60 staff positions.
Bishop Accountability © 2003
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