Judge Allows Release of Some Records in Priest Sex-Abuse Case.
By Mary Duan
The Monterey County Weekly
November 13, 2013
| Courtesy Gilroy Dispatch|
A judge has issued a preliminary decision that the Monterey County Weekly can obtain documents and deposition transcripts in the case of Father Edward Fitz-Henry, a Catholic priest suspended amidst allegations he molested a teenage parishioner at Madonna del Sasso Church in Salinas, and may have abused other young boys in the Monterey Diocese decades ago.
Monterey Superior Court Judge Tom Wills’ decision comes after the Weekly filed a motion to intervene in a civil suit brought by the most recent alleged victim, a man now in his early 20s who claims Fitz-Henry assaulted him multiple times while at Madonna del Sasso starting around 2005. The Weekly's aim is to unseal documents filed in the case, as well as obtain other evidence like the deposition transcripts.
"We're grateful that the court's preliminary ruling recognizes the public interest in disclosure of the information," says Weekly attorney Roger Myers of the San Francisco firm Bryan Cave LLP. "It's important this order be affirmed at the hearing so the public can know how the Diocese responded to the allegations against Father Fitz-Henry."
In making his preliminary order, Wills ordered the deposition of Don Cline, a former Salinas cop hired by the Diocese to investigate the abuse allegations, to be redacted before its release, meaning portions of the text will be removed or blacked out.
Wills also ordered Fitz-Henry’s own deposition transcript to be redacted, and ordered the same for the deposition of Agnes Leonardich, the former Superintendent of Schools for the Diocese, and Father Nicholas Milich, a priest who allegedly knew about the most recent allegations against Fitz-Henry but failed to alert authorities as he required by law. Priests are considered "mandated reporters," who have to report suspected child abuse to the police.
Wills further ordered that any information about psychotherapy and psychological counseling Fitz-Henry received—whether locally or at Servants of the Paraclete, a treatment center for troubled priests in Jemez Springs, New Mexico—be withheld. In addition, audio recordings of the interviews will remain protected, and only transcripts will be released.
Fitz-Henry was never charged with a crime in the John Doe case, and the Diocese settled with the alleged victim for $500,000, with neither party admitting wrongdoing. But while the Diocese claims the victim’s allegations in that case were not credible, the Diocese says it found evidence that accusations of abuse brought by a Carmel family in 1992 were true.
Fitz-Henry was sent to the Paraclete in 1990 after the family complained about the priest’s behavior toward their 14-year-old son at Carmel Mission School. While the mother claims former Diocese attorney Albert Ham assured her Fitz-Henry “would never be placed in an assignment where he would be around children again,” she wrote a letter to Bishop Richard Garcia in 2007 questioning why Fitz-Henry was allowed around children at Madonna del Sasso.
A copy of that letter was obtained by the Weekly. The Weekly is not naming the family or any other alleged victim because it does not identify victims of sexual assault.
In deciding whether to allow for the release of the documents, Wills raised concerns about whether opening up the court record could dissuade victims of abuse to come forward in the future: “Some documents suggest a reluctance by victims, their family members and witnesses to have come forward,” he wrote. “If the reporting of misconduct is to be encouraged, public disclosure of those reporting or witnessing must not be ordered.”
So he settled on allowing the titles, but not the names, of those involved to be released. This would still allow the public to determine when and whether alleged wrongdoing was reported, and whether responsive actions were taken, he reasoned.
The judge’s order, made Nov. 6, doesn’t mean the immediate release of any documents; the parties in the case, including the Weekly, are due to return to court on Dec. 9 for oral arguments on the decision. Further, Wills said he would consider staying his decision for 30 days following the upcoming hearing in case any party—the Diocese, Fitz-Henry or the Weekly—could seek review by a higher court.
In considering whether to release the documents, Wills weighed the public interest in accessing those records versus protecting private information, such as the information contained in Fitz-Henry’s personnel file.
“The mere existence of an allegation of wrongdoing ought not compel a finding of an overriding public interest,” he wrote.
In Wills’ reading of Fitz-Henry’s file, there’s no indication that his employment at the Diocese has actually been terminated, which Wills took to mean that he might still come into contact with children. The Weekly reported that as part of a settlement in a separate lawsuit Fitz-Henry filed against the Diocese, he agreed to laicization—a process in which he would give up being a priest. But laicization requires approval from the Vatican, and it’s not clear whether that approval has come through.