Marin DA Expects to Drop Charges against Priests
By Con Garretson
Marin Independent Journal
June 27, 2003
The Marin District Attorney's Office will seek the dismissal of criminal charges against at least six men - including four Catholic priests - charged under a 1994 state law declared unconstitutional yesterday by the U.S. Supreme Court.
The DA's office is reviewing both the decision and its conviction records to determine whether there are additional individuals prosecuted under the law that allowed cases to be filed beyond the normal statute of limitations.
In its ruling, the nation's highest court overturned a state Supreme Court decision that had upheld the statute that said a suspect could be charged if allegedly engaging in "substantial sexual conduct" and the charges were filed within a year of the authorities being notified by the alleged victim.
"I felt that the Supreme Court was going to follow the ruling of the California justices," Assistant District Attorney Ed Berberian said. "It's frustrating. In every case that was filed there was either an admission or a [secretly recorded telephone conversation by police in which incriminating statements were made]. There is no doubt in my mind that these crimes did occur, but this is the law we go by."
Berberian said his office could not immediately determine whether the exemption law had been used in any convictions since the 1994 statute had gone into effect because cases are filed by name and charges and not by the penal code designation for the law.
The dismissals, which must be approved by a judge, will be requested at each defendant's next scheduled court date or at an earlier date if requested, he said.
"A statute of limitation is a statute of limitations," said San Rafael attorney Leonard Bjorklund, who represents two of the six defendants. "You can't plead guilty to an unconstitutional law and this decision makes that plea moot."
Bjorklund's clients are the Rev. Jerome Leach, 52, of Corte Madera and Robert Fleak, 75, of Rohnert Park.
Leach had been awaiting a preliminary hearing on charges he sexually abused a 12-year-old altar boy over 10 months during the five years he was assigned to St. Patrick's Church in Larkspur in the late 1970s and early 1980s.
Fleak, who formerly coached lacrosse for a non-school team in Novato, pleaded guilty to molesting a boy in the 1970s when the former player was between 12 and 14.
Emeryville attorney Cristina Arguedas represents the Rev. Milton Walsh, the former assistant pastor of Our Lady of Loretto Catholic Church, who was charged with sexually touching an altar boy in 1984 during a return visit to the Novato parish. She said the high court made the correct decision.
"The U.S. Supreme Court is no friend of those accused of crimes but the majority of justices recognized that its fundamentally unfair to change the rules after the game is over when it comes to the statute of limitations," Arguedas said. "They can go out today and rewrite the law repealing the law on the statute of limitations and that would be fine. But to do it retroactively was wrong."
San Francisco attorney Arthur Wachtel, who represents the Rev. Gregory Ingels, the most-recently charged priest, said, "I think the justices appreciated how unfair the law was. The legal system can't adequately address situations that happened 30, 50 or 100 years ago."
Ingels, charged with molesting a 15-year-old Marin Catholic High School student 30 years ago while he taught at the Kentfield campus, is a lawyer who co-wrote a guide about disciplining sexually abusive priests for church leaders. Ingels was granted a hearing earlier this week in order to challenge the constitutionality of the law. Similar challenges by other Marin defendants had been denied.
Wachtel said he will seek to have the hearing anyway late next month rather than accept the dropping of charges so that the record reflects that Ingels shouldn't have been charged in the first place.
"I agree with the majority opinion that described the California law as 'manifestly unjust and oppressive,'" said San Francisco attorney Jim Collins, who represented eight members of the clergy, four of whom had been charged under the exemption, including one former and one current priest in Marin.
Among Collins' clients are Guy Murnig of Petaluma and the Rev. Arthur Harrison of Brookdale in Santa Cruz Country.
Murnig, 59, who left the priesthood after teaching at Marin Catholic High School, met his alleged victim when she joined the Teen Club of St. Sebastian's Church in 1970 when she was 14 or 15 and a student at Redwood High School.
Harrison, 72, was charged with abusing a 10-year-old girl in 1961 while he served at Our Lady of Loretto Church in Novato.
Collins echoed comments from other defense attorneys that the decision was no surprise because many other courts had already struck down attempts to establish similar laws in other states.
There is no statute of limitations on civil lawsuits and none have been filed in Marin in any of the six cases.
Berberian and defense attorneys said a criminal filing would have no affect on the weight of a civil lawsuit.
San Francisco Archdiocese spokesman Maurice Healy said that church leaders are still reviewing the cases of accused priests to decide whether sanctions, including defrocking, are appropriate under newly instituted church guidelines.
Evidence that came to light as a result of criminal cases will be used in those decisions, he said.
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