By Linda Deutsch
FortWayne.com [Los Angeles CA]
November 13, 2003
LOS ANGELES - An effort to investigate sex abuse by priests in the nation's largest Roman Catholic archdiocese has grown into a lengthy and complex legal battle buried under layers of secrecy.
In a case pending before a California appellate court, the Archdiocese of Los Angeles is trying to keep out of public view a judge's ruling on whether a grand jury investigating clergy abuse can see church personnel records.
A tentative ruling in the matter already has been issued by a retired judge who is working as a "special master" dealing with some aspects of the case. But that ruling is sealed - along with all the underlying documents.
Because the material could eventually be viewed by grand jurors, retired Superior Court Judge Thomas F. Nuss has ruled that everything relating to them must be sealed. He also has decided that all hearings in the case must be conducted in private.
Nuss was appointed by the judge assigned to the case to take over some of the massive workload created by it. His job has been to review thousands of pages of church personnel documents, then decide whether they have to be turned over to the grand jury. By order of the court, he's being paid $350 an hour by the archdiocese.
The case has astounded some legal experts for its level of secrecy.
"They better have something important to cover up," Loyola Law School professor Laurie Levenson said. "Otherwise, they are wasting a lot of good will. The more secret it is, the more tarnished the church will become."
The Los Angeles County District Attorney's office and a team of media lawyers are challenging the archdiocese in the case, which is scheduled for a hearing Monday before the California Second District Court of Appeals.
Lawyers for the archdiocese say their effort is not a cover-up, but rather a simple matter of law.
They are asserting a First Amendment privilege of freedom of religion, an extension of priest-penitent confidentiality to cover communications between priests and their superiors, and adherence to the grand jury process that mandates secrecy. The archdiocese's attorneys characterize the legal battle over the church documents as "religious persecution."
"The relationship between priest and church is a familial relationship, such as the husband-wife privilege. It goes to the heart of the ability to function as a church that has a celibate priesthood," archdiocese attorney J. Thomas Hennigan said. "These men, otherwise isolated from society, need a place to be able to discuss their innermost problems that is secure. It's not an effort to protect pedophiles."
But the priest-superior claim is a subject of fierce dispute.
"I'm unaware of any law that says anytime a priest talks to anyone in the church it's covered by privilege," Levenson said.
Los Angeles County prosecutors and the media lawyers also say the religious persecution argument is "nonsensical" in a case involving access to official court records. They argue that there are no grand jury rules covering proceedings outside the grand jury room.
"This may well wind up in the Supreme Court," said attorney Kelli Sager, who represents the Los Angeles Times and the Los Angeles Daily Journal. Both seek access to the Nuss tentative decision - and open hearings in his court before his final ruling.
"Contrary to the position taken by the archdiocese ... the public's right of access to criminal proceedings and records cannot be avoided merely by intoning the phrase 'grand jury' as if it has some talismanic effect," Sager said in a brief.
Lawyers for the archdiocese said Cardinal Roger Mahony has been in favor of openness but was overruled by his legal advisers.
"It was his lawyers that told him there was a limit to what he can and can't do," Hennigan said. "He doesn't have a choice regarding certain categories of documents."
Last May, Mahony pledged to turn over church documents, at the time saying, "We want every single thing out, open and dealt with, period."
Hennigan and his colleague, Donald F. Woods Jr., said Mahony and the church are facing hundreds of civil suits in which the internal documents could play a role if they are revealed. Plaintiffs' lawyers believe the documents may show that priests admitted their abuse, and will provide insight into how the church hierarchy responded.
The circumstances bear similarities to those in Boston, where the sex abuse scandal erupted in 2002, quickly spreading nationwide.
Church lawyers there continually made the same "prelate privilege" argument that the Los Angeles Archdiocese is making - but judges ordered the Archdiocese of Boston to turn over the personnel documents.
The files showed church officials allowed accused abusers to shuffle between parishes, and the resulting public outrage hastened the resignation of Cardinal Bernard Law as archbishop.
Woods, however, said the comparison is misplaced because the Boston church documents were released by church attorneys due to overwhelming "media pressure."
Meanwhile, Los Angeles County Deputy District Attorney William Hodgman, who heads the office's sex crimes unit, maintains an office piled high with files on alleged priestly molesters. But they will never be prosecuted because of a U.S. Supreme Court ruling in June.
That ruling overturned convictions in some cases and ordered others to be dropped. It said states cannot retroactively extend statutes of limitations on prosecution of old molestation cases.
The district attorney's office is seeking the church documents now in part to determine whether they show evidence of more recent sexual abuse of minors.
Hodgman has one case pending against a priest that was filed within the statutory limit and hopes some others can be salvaged. The church documents, he said, could assist in his investigation.
But he's prepared for a long legal battle.
"It's like Watergate unfolding," he said. "It's history unfolding, and I don't know how it will end."
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