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	Diocese Lawyers: Mistrial Was Judge's Mistake By Sam Hemingway Burlington Free Press August 21, 2007 http://www.burlingtonfreepress.com/apps/pbcs.dll/article?AID=/20070821/NEWS02/708210306/1007/NEWS05 Burlington (VT) — Lawyers for the state's Roman Catholic diocese, blamed by Judge Ben Joseph for causing a mistrial in a recent priest molestation case, say the church should not be financially punished because it's the judge who made a mistake. According to new papers on file at Chittenden Superior Court, church lawyers say Joseph — even in a private chambers meeting with lawyers during the June trial — never said he disapproved of a controversial line of questioning taken by diocesan attorney David Cleary. "On the contrary, the court's initial response to plaintiffs motion for mistrial indicates the court felt during questioning — and still thought in chambers — that Mr. Cleary's questions had been legitimate," fellow diocesan attorney Tom McCormick wrote in a brief filed last week. Citing a transcript of the closed-door chambers meeting, McCormick wrote that Joseph himself used the word "legitimate" to characterize Cleary's questioning strategy. The case at issue involves James Turner, 46 of Virginia Beach, Va. In 2004, he sued the diocese and the former Rev. Alfred Willis, alleging Willis molested him at a Latham, N.Y., motel in 1976 after a religious and family celebration of his brother's pending ordination as a priest. At the trial, Cleary questioned Turner about the nature of an allegedly sexual relationship between Willis and Turner's brother. Turner's lawyers objected, noting that Joseph had forbidden such questioning in a pre-trial order. Joseph, however, initially allowed the questioning to go on. Joseph, after hearing complaints from Turner's lawyers during the chambers meeting, determined Cleary had gone too far in the questioning and agreed to declare a mistrial. The judge also ordered the diocese to pay Turner's trial preparation costs. Those costs, according to Turner attorney Jerome O'Neill, are more than $112,000. "The plaintiff obtained the remedy he sought — a new trial," McCormick wrote in his brief asking that Joseph reconsider his mistrial ruling. "It would be unjust to impose the costs of that retrial upon the diocese or its counsel." O'Neill said the potential $112,000 punishment is justified because Cleary knew his questioning violated Joseph's pre-trial order and, by pressing Turner about his brother's relationship to Willis, made Turner look evasive to the jury. "The judge had made an unequivocal pre-trial order; Cleary violated it, and he got caught," O'Neill said in an interview. "Now they're saying 'Oh gee, the judge should never have issued the order in the first place.'" McCormick also wrote that even if Joseph's concern with Cleary's questioning of Turner was valid, declaring a mistrial was too extreme a response. "A mistrial is the most drastic of remedies, which should only be used as a last resort to address and remedy incurable prejudice," McCormick wrote. "Some other corrective measure would have sufficed." McCormick declined comment on his filing. Cleary said in an interview that he hopes Joseph will rethink his rulings. "I am in hopes that a fair and impartial review will convince the court that the mistrial was not necessary or, alternatively, that there indeed should not be any sanctions imposed," Cleary said. Sanctions is a legal term usually involving financial penalties for improper conduct by a lawyer in a court proceeding. A second trial in the Turner case, likely before Judge Matthew Katz, is expected to get under way this year. Willis, who was named in the original lawsuit, settled separately with Turner last year and is no longer a defendant in the case. Contact Sam Hemingway at 660-1850 or e-mail at shemingway@bfp.burlingtonfreepress.com
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