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  Evidence against Priest Tossed in Child Porn Case
GP: Judge Says Evidence Was Seized Illegally

By Robert Tharp
The Dallas Morning News [Texas]
June 10, 2006

http://www.dallasnews.com/sharedcontent/dws/news/localnews/
stories/DN-bagert_10met.ART.North.Edition1.3d9a4fd.html

Charges may be dropped against a Grand Prairie priest accused of keeping child pornography on a church computer after a judge ruled that a fellow priest and a church deacon broke the law when they searched his computer without his consent.

The ruling by District Judge John Creuzot throws out the child pornography evidence seized on the office computer of the Rev. Matthew Bagert in February 2005. Prosecutors have let a 15-day deadline to appeal the ruling expire, but said they are still exploring options to resurrect the case. Father Bagert, who has been suspended from his duties, was expected to go to trial on Monday.

His attorneys say they expect the charges will now be dismissed.

"They don't have any evidence to present," said attorney Kevin Clancy. "It's pretty hard to have a trial without evidence."

While employment law experts say workers should not expect any privacy rights when using company-owned equipment, Texas criminal codes and the U.S. Constitution protect individuals from unreasonable searches and do not allow evidence to be admitted when it is obtained by breaking the law.

In this case, Father Bagert's attorneys charged that a co-worker and a church deacon committed the misdemeanor offense of "breach of computer security" by sneaking into his office and searching the computer. According to the statute, ownership of a computer is defined broadly and can include the employer as well as the user.

The Rev. Jesus Belmontes, an associate priest at Immaculate Conception Catholic Church where Father Bagert worked, told authorities that in December 2004 he saw what appeared to be a pornographic image of a child reflected from Father Bagert's computer monitor during a visit with him in his rectory office.

Father Belmontes testified in a court hearing that he initially thought the image could have been an "artistic" photo or a family snapshot. The following month, Father Belmontes attended a church workshop on recognizing and reporting sexual abuse, and became concerned about Father Bagert's activities.

Fearing the possibility that he might be making a false accusation, Father Belmontes said he then decided to sneak into Father Bagert's office to get another look before reporting the pornography to higher-ups in the church.

The day after that search, Father Belmontes and deacon David Maida returned to the computer, searched it again, and videotaped the images they found. Both men testified in a February hearing that they did not have Father Bagert's permission to enter his office and use the computer.

Grand Prairie police later executed a search warrant and arrested Father Bagert based on the images they found.

Mr. Clancy and attorney Patrick McLain argued that the two men broke the law when they entered Father Bagert's office and searched his computer without his consent. Any evidence seized as a result of that crime should not be allowed in trial, they argued.

"It's part of his constitutional rights," Mr. Clancy said. "I wouldn't call it a technicality. I'd call it the judge following the law."

In his ruling, Judge Creuzot found that Father Bagert had a "greater right to possession" to the computer than did Father Belmontes and Mr. Maida. As a result, the search amounted to a misdemeanor offense of breaching computer security.

"The court finds that because the evidence obtained was a result of a criminal offense, it may not be used against the defendant in trial," Judge Creuzot wrote in his ruling. Judge Creuzot declined to comment about his ruling, saying it is part of a pending case.

Prosecutor Brooke Grona-Robb argued that the church employees had "implied consent" because the computer was owned by the church not Father Bagert. Officials with the Dallas County district attorney's office declined to discuss the case in any detail.

George Dix, a University of Texas law professor, said the co-workers would have been on firmer legal ground had they first gone to superiors with their concerns and gotten consent from them to search the computer.

"The lesson, it seems to be, is that if you think a co-worker is doing bad things on his or her computer, you should not act unilaterally but should go through channels," he said.

Mary Edlund, chancellor for the Catholic Diocese of Dallas, said the diocese requires that the police be notified immediately when there is a suspicion that a crime is occurring.

"I can't speak for Father Belmontes and what was in his mind at that time," she said. "When he came here, he wanted to be able to show us something concrete. I believe that is what motivated him."

Although the law protects an employee from government intrusion through an unconstitutional search or seizure, it doesn't offer much protection from companies that wish to monitor employees at work.

Labor and employment law experts say workers have no right to privacy with company-owned computers, telephones or e-mail, even if a policy is not spelled out in an employee handbook.

"Normally, there's a policy in every handbook saying you have no right of privacy," said Carrie Hoffman, a partner with Gardere Wynne Sewell LLP. "It's a company-owned machine. They're letting you use it while you're employed there."

Ms. Edlund said Father Bagert will remain suspended.

"When the charge was made, Bishop [Charles] Grahmann immediately removed the priest from the position. He does not publicly function as a priest and that status will not change," she said, adding that the case has been referred to church authorities in Rome for review.

 
 

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