Priest Abuse Cases Sealed by Judges
By Walter V. Robinson, and Sacha Pfeiffer
February 16, 2002
Between 1992 and 1996, different judges chose to impound all the records in five Suffolk County lawsuits involving three priests who molested children because they reasoned that "the particulars of the controversy" ought to be kept from the public.
The records, which were unsealed yesterday, also contain fresh evidence of the Boston Archdiocese's preoccupation with keeping sexual misconduct by its priests confidential. In one case, Wilson Rogers Jr., the attorney for Cardinal Bernard F. Law, argued that public knowledge about the molestations "would be seriously damaging" to the archdiocese.
In that same case, Laurence E. Hardoon, the attorney for a boy who had been anally raped by the Rev. Robert M. Burns, bolstered the secrecy argument made by the archdiocese by telling the judge that he did not believe Burns was a threat to children. But three years later, in 1995, Burns was arrested in New Hampshire and later imprisoned after he pleaded guilty to molesting two additional children. Burns was the defendant in three of the five civil cases.
In another case, involving former priest Paul J. Mahan, the judge impounded all the records even though the victim testified that he only wanted his identity kept from public view.
The impoundment orders in the five settled Suffolk lawsuits - which erased any public record the suits had been filed - were lifted by Suffolk Superior Court Judge Ralph D. Gants after the Globe filed a motion arguing there was a "legitimate public interest" in the issue of clergy sex abuse.
In Middlesex County, an identical Globe motion is pending to unseal four other settled lawsuits involving priests that were also impounded.
Superior Court Judge Margot Botsford, who signed a May 31, 1995 order impounding one of the Suffolk cases, said last night that in hindsight, she might have ruled differently "if I had been aware of how widespread this issue was."
The impounded cases represent one of three building blocks in a decade-long church effort to hide the extent of sexual abuse of children by priests. In addition to persuading judges to impound some settled lawsuits, the archdiocese steered most victims and their lawyers into private negotiations that resulted in secret settlements involving at least 70 priests. Those settlements, and the identity of most of the priests, remain secret.
And in lawsuits not impounded, the parties signed agreements that no one could disclose any of the terms of the settlements.
Meanwhile, a grand jury in Norfolk County earlier this week issued subpoenas to the archdiocese for records on close to 20 priests and former priests who are suspected of having molested children at churches within the county. The subpoenas formalized a request that Norfolk District Attorney William R. Keating had made to the archdiocese after the church gave his office the names of priests whose diocesan records indicate they sexually abused children over the last four decades.
The Globe discovered the impounded Suffolk and Middlesex cases by examining computerized docket numbers of more than 1,000 settled civil lawsuits of all types involving about a dozen attorneys who were known to have had a role in cases regarding priests. The existence of the individual impounded cases became apparent when the court computer system blocked access to any information about them.
In the Suffolk cases, which involved Burns, Mahan, and the Rev. Richard O. Matte, the five judges justified the final impoundment decisions in writing, all of them using boilerplate language declaring that "the nature of the parties, the particulars of the controversy, the privacy interest involved, the interest of the community ... all represent good cause" for sealing the records in their entirety.
All the details about the impoundment hearings were also under court seal.
The Globe filed motions to unseal the cases in both Suffolk and Middlesex counties in December. The month before, acting on a different motion by the newspaper, Suffolk Superior Court Judge Constance M. Sweeney lifted a separate confidentiality order that had been applied to all documents produced in about 90 pending civil lawsuits against pedophile priest John J. Geoghan.
Judge Botsford, the only one of the judges who could be reached yesterday, said that the revelations about priests that have cascaded out in the last month have altered her view. Indeed, other lawyers said yesterday that they now doubt that any judge would seal such a case.
"I guess I'm thinking back that if one had been aware, if I had been aware of how widespread this issue was, I might have had a very different reaction to it, I think," Botsford said. "But this is Monday morning quarterbacking. ... I just think that we have all learned a lot out of this process, frankly."
The five impoundment orders had the effect of delaying for several years any public notice about Burns and Mahan. In Matte's case, Botsford's order successfully kept Matte's molestation secret until a Globe report last month.
The order in Matte's case shielded from public view a case of rape, according to the complaint. Matte, who was assigned to St. Joseph's Church in Pepperell in the 1970s, canceled a youth group meeting at the rectory. But he intentionally did not tell the 13-year-old victim, who showed up alone. After raping the boy, Matte warned him that if he told anyone, he would go "straight to hell."
Matte, who is still listed as an active priest by the archdiocese, but "unassigned," is living in South Dennis. Burns and Mahan have both been defrocked.
Mahan, who still faces numerous other civil lawsuits alleging sexual abuse, was accused in the impounded case of molesting a 10-year-old boy while he was serving at St. Ann's in Dorchester during the 1970's.
In Matte's case, two other Superior Court judges, Vieri Volterra and Thayer Fremont-Smith, issued temporary impoundment orders before Botsford issued the final order. In the other four cases, the judges who issued the orders were Patrick King, Charles Barrett, John J. O'Brien, and J. Harold Flannery.
In all the cases, the judges faced joint impoundment motions - the church looking for secrecy and the lawyers for the victims looking to keep the identity of their clients out of public files.
Judges have wide discretion to approve or deny impoundment requests. But when opposing lawyers in a case are in agreement on whether records in question should be sealed, a judge is unlikely to take a different stance, legal experts said.
"Judges generally function as relatively passive arbiters of disputes," said Elizabeth Bartholet, a professor at Harvard Law School, "so when there's not a dispute you just can't count on a judge doing much."
Like others, Bartholet also suggested that the church is an outsized player in any courtroom. "There's a risk that judges are going to be more sensitive to the interest of extremely powerful players," said Bartholet.
The records that were unsealed yesterday offer extensive details about the abuse itself, as well as arguments that the church's lawyers and attorneys representing the victims made in the secret impoundment hearings.
In the Matte case, for example, attorneys for both sides - Rogers for the church and the victim's attorney, Rikki J. Klieman - signed a motion supporting an impoundment order, saying they wanted to "avoid the possibility of publicity in the news media ... in order to create optimal opportunity for a successful resolution of this matter."
In one of the three cases involving Burns, according to hearing transcripts, the archdiocese paid his victim $375,000. Hardoon, who represented all three of Burns's victims, declined to say how much the other victims received.
According to the transcript of one hearing, Rogers urged the judge to seal the records, because "to permit this case to get into the public domain would seriously undermine the ability" of two priests who supervised Burns "to continue to function as priests."
Hardoon, who came to prominence as the lead prosecutor in the highly publicized Fells Acres Day Care sex abuse case, made his own plea to seal the files to protect his client's privacy. But then he added some support for Rogers. Burns, Hardoon said, "is no longer functioning as a priest" and "he is not a risk, at the present time, as we understand it, to any other children in the community."
Three years later, Burns was arrested after luring two boys to his Salem, N.H., apartment and molesting them.
Hardoon, in an interview yesterday, said "that was a statement about his being a risk that I obviously would not make today." Then he added: "That is probably not a statement I should have made even then."
This story ran on page A1 of the Boston Globe on 2/16/2002.
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