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  Judge Dismisses Abuse Case against Diocese of San Diego

By Mark Sauer
Union-Tribune [San Diego CA]
January 24, 2007

http://www.signonsandiego.com/news/northcounty/20070124-9999-1m24dismiss.html

One of five clergy-abuse cases set for trial against the Diocese of San Diego has been dismissed by a judge who ruled there was no evidence that church officials were aware the accused priest may have been a pedophile.

Michael Shoemaker, who now lives in Kansas, filed suit in August 2002 alleging that the late Rev. John Daly molested him at St. Joseph Church in Holtville in 1977.

Shoemaker, then 16, said he and an 18-year-old friend were hitchhiking in the rain in El Centro when Daly picked them up and said they could spend the night at the church.

After awaking to find Daly orally copulating him, Shoemaker said, he and his friend fled the church. They reported the incident to Holtville police.

Daly was arrested but never charged, according to Walter Dutton, the former officer who made the arrest. Dutton has testified that he remembered seeing police paperwork citing two prior arrests of Daly on sex-abuse charges.

But in dismissing Shoemaker's lawsuit, Superior Court Judge Haley Fromholz of Los Angeles noted that the plaintiff's attorneys failed to produce any documents from police files, or Daly's personnel file, corroborating previous arrests.

"Even if there were admissible evidence supporting the existence of these prior arrests, there is no evidence that (diocese officials) knew or had any reason to know of their occurrence," wrote Fromholz in a ruling issued Monday.

Shoemaker tried to argue that church officials may have destroyed documents in Daly's personnel file which would have proved they knew he was a molester, said Dave Carothers, an attorney representing the San Diego diocese.

"But the court ruled there is no evidence that (Daly's file) was destroyed or mishandled," said Carothers, who filed the motion to dismiss the case along with attorney Brandy Cody.

"The judge was not going to deny our motion based on speculation," Carothers said.

Proving "notice" that church officials knew, or should have known, that an individual priest was a sex abuser can be a challenge, said Irwin Zalkin.

Zalkin is a San Diego attorney representing about 30 percent of 160 plaintiffs who have sued the diocese over allegations of sex abuse dating back decades. Shoemaker's attorney, Anthony DeMarco of Los Angeles, did not return phone calls.

"These cases hinge on the issue of notice," Zalkin said. "In the (Shoemaker) case, there were no documents to rely upon. It's difficult to prove notice when the diocese destroys confidential files."

About 60 of the 160 sex-abuse cases filed four years ago against the Diocese of San Diego have been released for pretrial investigation and depositions, a process known as discovery.

Four lawsuits are now set for trial, beginning on Feb. 28, at the main county courthouse in downtown San Diego.

Mark Sauer: (619) 293-2227; mark.sauer@uniontrib.com

 
 

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