Gag Order Issued in Priest Sex Abuse Case
Judge Doesn't Want Deliberating Jurors to Be Swayed
By Pablo Lopez
Fresno Bee [Fresno CA]
December 12, 2006
A judge presiding over a civil trial in which a former altar boy has accused a Fresno priest of sexual abuse has issued a gag order to prevent lawyers from swaying jury deliberations.
Judge Donald Black issued his order after Juan Rocha's lawyer, Larry Drivon, said his client had offered to settle the lawsuit in Fresno County Superior Court for $1 — provided Father Eric Swearingen leaves the priesthood.
The Roman Catholic Diocese of Fresno immediately rejected the offer, made Thursday, on the first day of jury deliberations.
Jurors will return to court today for a third day of deliberations.
The trial pits Swearingen, pastor of Holy Spirit church, against former altar boy Rocha, now 31 and a decorated Army sergeant first class.
The gag order prohibits lawyers or any person associated with the case from making "any extrajudicial statement relating to this case."
Monday, Drivon and the diocese's lawyer, Carey Johnson, declined to comment about the case.
Two veteran civil trial lawyers not associated with the case had different opinions about why Drivon would talk about a settlement offer during jury deliberations.
"Frankly, I was surprised to see it in the newspaper because settlement discussions are inadmissible as evidence. Every trial lawyer knows that," said Fresno lawyer Mick Marderosian.
Typically, lawyers will discuss settlement offers after a verdict is announced, said Marderosian, who questioned whether Drivon was trying to sway the jury.
"To me, it sounds like [Drivon] is unsure about his case," he said.
If Rocha loses the case, he would be liable to pay the diocese tens of thousands of dollars in legal costs, Marderosian said. But if Rocha wins even $1 in damages, the diocese would be liable to pay his legal costs, the lawyer said.
Fresno lawyer Nicholas "Butch" Wagner agreed that a settlement offer is inadmissible as evidence, but that doesn't mean lawyers can't talk about it in public. In cases like this, lawyers have to contend with public opinion, he said.
"Maybe [Drivon] wants people to know his client isn't greedy," Wagner said.
Because the jury has deliberated two days already, Wagner said he believes the panel has agreed with Rocha's claim that Swearingen molested him and is now debating whether the diocese is liable.
Offering $1 to settle the case, however, can hurt Rocha because the jury might give him far less in damages than what these cases usually pay, Wagner said.
Two previous sex-abuse lawsuits filed against the Fresno diocese in 2002 and 2003 have been settled in the last four months — one for $875,000 and another for $650,000, court records show.
"It's a risky move to talk about a settlement offer before a verdict," Wagner said.
Black said in his written order that media coverage of the trial "has the potential to be prejudicial to the rights of the parties to a fair trial because it was pervasive."
The judge specifically cited a front-page story Friday in The Bee in which Drivon spoke of an offer to settle the case and the diocese's response. Though Black has admonished jurors not to read or view news coverage of the case, the judge said in his order that the newspaper article was "almost unavoidable even for a juror."
In addition to the settlement offer, Black said the media also has mentioned other inadmissible evidence — Rocha's past indiscretions before joining the Army in 1999.
Marderosian said: "The judge has a right to issue the gag order because he's probably upset that the results could be tainted."
Wagner agreed, saying if jurors are questioned and found to have been swayed by media coverage, it could be grounds for a mistrial.
Rocha has accused Swearingen of molesting him at Our Lady of Guadalupe in Bakersfield and at St. Alphonsus parish in southwest Fresno when Rocha was between 12 and 15 years old. He is seeking unspecified damages from the diocese, contending he suffered emotional distress from the alleged abuse.
During the trial, Swearingen testified that he allowed Rocha to stay temporarily in the two rectories, but never molested him.
Before the gag order, Drivon said the $1 settlement offer backed up his claim that "this case was never about money."
Johnson, in response, said it was rejected because Bishop John Steinbock firmly believes in Swearingen's innocence.
Rocha has to convince the jury that a preponderance of evidence showed the abuse happened, which is far below the standard in a criminal case of proving beyond a reasonable doubt.
No criminal charges were filed against Swearingen.
To reach a verdict, the jury of seven women and five men must answer as many as four questions. At least nine of the 12 jurors must first determine whether Swearingen committed childhood sexual abuse against Rocha.
Then, to determine damages in Rocha's favor, the jury must find that the diocese knew or had reason to know of the sexual misconduct, and then determine whether the abuse "was a substantial factor in causing harm" to Rocha.
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