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  Diocese Takes Shot at DA
Court: Prosecutors Took a Priest's Records during a Search. the Church Says Confidentiality Is at Stake

By Michael Fisher and Mike Kataoka
The Press-Enterprise
March 8, 2005

The Diocese of San Bernardino is asking a judge to return a defrocked Inland priest's personnel file, arguing that Riverside County prosecutors improperly seized the documents while investigating the former cleric who was later charged with child molestation.

The Jan. 25 search warrant, the first ever executed at the diocese's headquarters in San Bernardino, violated federal and state constitutional standards, diocesan lawyer Bill Lemann argued in court papers filed Friday.

Lemann also contends the seized personnel file for Jes�s Armando Dominguez contains privileged paperwork, and that prosecutors failed to follow California laws that require a third party, dubbed a special master, to be present during such searches to secure sensitive records and review their relevance.

"Given our positive relationship with the district attorney's office in the past, it is surprising that they attempted to go beyond what the law allows by seizing confidential, personnel and medical records," said the Rev. Howard Lincoln, spokesman for the million-member diocese, comprising Riverside and San Bernardino counties.

Riverside County District Attorney Grover Trask said that although his office acted properly he will now require a special master be present during searches involving potentially privileged documents.

He said the diocese's objections to the search stem from "a misunderstanding of the criminal arena and what our duties and responsibilities are."

A search warrant is the proper tool to gather evidence in a criminal investigation, whether dealing with a private citizen, a business or a religious institution, he said.

"We have a job to do," Trask said. "If we go in and tell them we want records without a warrant, they could tell us to pound sand or destroy records. I'm not saying the diocese would do that, but if you're the attorney representing the Catholic Church or the diocese, the first thing you'd ask is 'Where's your search warrant?' " Trask said.

Hearing in May

Dominguez's personnel records are now with Riverside County Superior Court Judge Russell Schooling, who is presiding over the dispute. A hearing is set for late May.

David Clohessey, executive director of the Survivors Network of those Abused by Priests, a national self-help group, said he was disappointed, but not surprised, by the diocese's request to have the file returned.

"Despite continued pledges of openness and transparency, virtually nothing changes in terms of behavior," Clohessey said. "They talk a good game, but in every legal proceeding, the church goals seems to be continued secrecy."

Lincoln, however, said the diocese's concerns have nothing to do with Dominguez but revolve around its obligation to maintain the confidentiality of the personnel files of its 2,500 employees and more than 25,000 volunteers.

"Our diocese is committed to working with local law enforcement in the pursuit of Jessie Dominguez," Lincoln said. "The last thing we want to do is protect Jessie Dominguez."

File Seized, Sealed

Dominguez's 2-inch-thick personnel file was seized after a two-hour search of the diocese's office by sheriff's deputies and prosecutors. At Lemann's insistence, the file was immediately sealed and has not been reviewed by prosecutors.

About a week after the search, prosecutors charged Dominguez with 58 counts of child molestation, a record for an Inland priest, alleging he molested two teenage boys in 1988 and 1989 at Our Lady of Soledad Church in Coachella and St. James Church in Perris.

Prosecutors have secured a $500,000 arrest warrant for Dominguez, 56, who is believed to have fled to Mexico. Dominguez, a one-time aide to the diocese's former bishop, Phillip F. Straling, faces more than 43 years in prison if convicted.

Dominguez voluntarily left the priesthood, or was laicized, in 2000, one year before he pleaded no contest to a misdemeanor child-annoying charge in Los Angeles County for trying to take nude photos of a 15-year-old boy, according to court records.

According to Lemann's filing, the diocese reviewed a copy of the sealed records and does not object to some of the documents being released to prosecutors. But the diocese said other paperwork relating to Dominguez's laicization, attorney communications and any psychotherapist or medical records should be deemed privileged.

The diocese is requesting a closed-door meeting with Schooling to review a list of documents diocesan officials believe should remain confidential, Lincoln said.

Dominguez's file is split into three sections labeled laicization, general personnel and stigmata. In 1983, Dominguez was the subject of a stigmata investigation after blood reportedly appeared on his hands and on consecrated bread during a Mass at St. Edward Church in Corona.

Officials with the United States Conference of Catholic Bishops, as well as victims' advocates and legal scholars agreed Tuesday that it is unusual for prosecutors to serve search warrants at churches.

But the clash between Inland prosecutors and church officials over personnel files marks the latest skirmish to erupt between Catholic leaders and authorities across the country since the clergy sexual-abuse scandal nearly three years ago.

The Los Angeles Archdiocese is appealing a ruling that required it to turn over the personnel files of some accused priests to the Los Angeles County district attorney's office. Legal wrangling over those records has lasted more than two years, leading victim advocates to accuse Cardinal Roger Mahony of trying to keep the church files secret.

"We're seeing this everywhere," said Marci Hamilton, a professor at New York's Cardozo Law School, a leading scholar on church-and-state issues.

Special Master

Part of the Inland dispute stems from disagreement over whether a special master had to be present when the search warrant was executed. State law calls for special masters to be appointed as third parties to review files that may contain sensitive or confidential information, such as documents seized from doctors, lawyers, psychologists or clergy.

Lemann argues in court papers that the search warrant is invalid because state law required a special master be present during the search. A special master was not appointed until the next day.

Trask said his staff decided that a special master wasn't legally necessary during the search. From now on, a special master will be present during searches for personnel files and other potentially privileged information, Trask said.

But he made no apologies for the search and has no plans to otherwise change procedures to accommodate church officials.

"We can't give prenotice," he said. "The whole thing about a search warrant is we want to make sure material is there that is supposed to be there."

Lincoln said the diocese has cooperated with investigators from San Bernardino to Los Angeles to San Diego counties, as well as the state attorney general's office and authorities in other states. All Riverside County prosecutors had to do was ask, Lincoln said.

Cooperation Assured

"We have never held anything back," Lincoln said. "If they would have called, we would have said, 'Let's ensure both the diocese and the DA's office are following the law, and let's set parameters for a review of the Dominguez file.' We would have cooperated."

Lincoln said the diocese would like to negotiate guidelines with prosecutors for releasing diocesan personnel documents in the future.

"In the spirit of openness and cooperation, I have instructed our counsel to work with your office to establish a protocol to avoid the necessity of search warrants in the future and to short circuit litigation that may arise in such matters," Bishop Gerald R. Barnes wrote in a letter sent Friday to Trask.

Trask, however, said that outside of having a special master present during searches, he will make no other protocol changes in response to the diocese's request for a memorandum of understanding between prosecutors and the church.

 
 

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