By Pedro Oliveira
Janesville Gazette
January 6, 2010
http://gazettextra.com/news/2010/jan/06/mcguire-ruling-could-open-doors-appeals/
MADISON -- Wisconsin Supreme Court justices could open the door for more high-profile defendants to appeal their convictions if they rule in favor of a priest found guilty of sexual assault, Walworth County's top prosecutor said Tuesday.
The Supreme Court on Tuesday heard oral arguments in the appeal of the 2006 conviction of Donald J. McGuire, a former Jesuit priest found guilty in Walworth County of molesting two boys in the 1960s.
McGuire, who once commanded a worldwide following as a preacher and philosopher, is considered one of the most influential religious figures convicted in the Catholic Church's sexual abuse scandal.
The question before Wisconsin's highest court is whether the 36 years between the offenses and McGuire's prosecution barred him from presenting a proper defense and from having a fair trial.
"If McGuire rules against the state, this opens the door for many defendants to challenge their convictions when there has been a lengthy passage of time between the crime and the time that it was either reported or convicted," Walworth County District Attorney Phil Koss said.
Attorney Robert Henak countered that prosecuting his client 36 years after the crimes allegedly occurred conformed to the statute of limitations but took away McGuire's right to a fair trial because key witnesses either were dead or had fuzzy memories.
Three priests who could corroborate McGuire's defense had died before the trial, and records that might have provided an alibi were unavailable, he argued.
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| Fr. Donald McGuire |
"Requiring this person to proceed to trial violates the fundamental conceptions of justice," he said.
Assistant Attorney General Daniel O'Brien told the Supreme Court that any case with a delay in prosecution could be subject to retrial if the justices rule in favor of McGuire's appeal.
As an example, he cited the 2009 conviction of Russell J. Lesser, a former youth pastor sentenced in Walworth County to 10 years in prison on charges of sexually assaulting a child in the mid-1970s.
Koss said even homicides, which have no statute of limitations, could be appealed on the basis of delays between the crimes and prosecutions where key witnesses were deceased.
The seven Supreme Court justices on Tuesday seemed skeptical and unlikely to overturn McGuire's conviction.
Justices Michael Gableman and Ann Walsh Bradley questioned whether deceased witnesses would have helped McGuire if they were still alive.
Justice Patience Roggensack said the delay in prosecution was not the result of prosecutorial misconduct, which is a requirement for a successful appeal seeking another trial.
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| Phillip Koss |
Chief Justice Shirley Abrahamson questioned the significance of the case for McGuire, 79, who is serving a 25-year federal sentence in Chicago on charges of traveling outside the United States and across state lines to have sex with a teenager. The Wisconsin case helped pave the way for the federal prosecution.
Henak said McGuire wants "exoneration from false allegations" and that the federal case also is being appealed.
McGuire was sentenced in 2006 on five counts of indecent behavior with a child stemming from two victims' accounts that they separately had sexual contact with McGuire during trips to a cottage in Fontana in 1967 or 1968. At the time, McGuire taught the boys at the Loyola Academy in Wilmette, Ill. The men came forward in 2003.
The statute of limitations for sexual assaults is six years in Wisconsin.
The statute freezes, however, if the defendant moves to a different state, which McGuire did.
He was sentenced to seven years in prison and 20 years probation.
A ruling by the Supreme Court is expected before August.
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