No jail for Bishop O'Brien
By Gary Grado
East Valley Tribune
March 27, 2004
A judge’s decision Friday to spare Bishop Thomas J. O’Brien jail time for a hit-and-run conviction left one family silent, the other family giddy and the prosecutor seething.
It also left open the question of whether O’Brien was treated like anyone else would be.
A relaxed and smiling O’Brien accepted handshakes, hugs and kisses from family and supporters in Maricopa County Superior Court after Judge Stephen Gerst put him on probation for four years and ordered him to complete 1,000 hours of community service in "any places where people are suffering."
Gerst said he sought to treat O’Brien like an ordinary citizen, but that a felony conviction for a man of his stature is more significant to him than to others and that being a humiliated public figure can be a form of punishment.
"He will bear the glances and quiet whispers in public the rest of his life," Gerst said.
The retired Catholic leader declined to comment.
"It wasn’t a case that cried out for jail at all," said defense attorney Tom Henze.
From across the aisle in the spacious courtroom, about 15 members of victim Jim L. Reed’s family silently watched O’Brien’s family smile, laugh and exchange hugs.
"It couldn’t have been better," said Mary Anne McKone, a friend of O’Brien who attended the trial daily.
Several members of Reed’s family declined comment as they filed out of the courtroom, some in tears but most with blank looks.
An hour after the sentencing, Maricopa County Attorney Richard Romley took what was for him an unusual step and criticized the judge.
"The message he sent today is that if you are a person of some note, then you are to be treated differently," said Romley, whose prosecutors asked for no less than six months in jail.
O’Brien hit Reed June 14 near the intersection of Glendale and 19th avenues and left without rendering aid or calling police.
O’Brien said he didn’t stop because he believed he hit a dog or someone threw a rock at his windshield.
Reed was intoxicated and jaywalking when he was hit.
A jury convicted O’Brien on Feb. 17 after a monthlong trial, believing his story that he never saw Reed, but holding him accountable by saying he should have known from the impact he injured someone.
Gerst had the option Friday of sending O’Brien to state prison for up to 3 3 /4 years or placing him on probation. Arizona law also allowed Gerst under terms of the probation to sentence O’Brien to up to one year in jail, fine him, and order him to serve community service.
The judge took an hour and used a slide presentation to explain the reasoning behind his decision.
Gerst compared O’Brien’s case with the previous 99 hitand-run cases involving death or serious injury that have been filed in Maricopa County since 1996.
Of those, judges sentenced 25 people to prison and put 74 of them on probation.
Forty-four were sentenced to jail as a term of their probation and 20 got no jail. Ten were given deferred jail sentences, which judges often delete if the person stays free of trouble between time of sentencing and the time he or she is to report for jail.
Gerst gave O’Brien a sixmonth jail term deferred until Sept. 25, and as long as he stays straight and complies with his probation, Gerst will likely keep deferring any jail time.
Gerst said he found 10 factors judges used in sentencing in the other 99 cases.
Some of the factors were whether the defendant had "actual knowledge" of hurting someone, whether alcohol or drugs were involved, whether there were multiple charges, the defendant’s criminal background and whether the defendant tried to hide evidence or avoid police.
Other factors included whether the defendant was an illegal immigrant, whether there was no driver’s license or if it was suspended, evidence of speeding or improper driving, and whether sentencing enhancements were involved such as if the person was on probation at the time of the crash. The last of the 10 factors — whether the defendant failed to return to the scene or call police within an hour — was the only one to be found in O’Brien’s case, Gerst said.
And of all the cases he examined, no one went to jail when that was the only factor cited, Gerst said.
Gerst also rejected the state’s contention that it was concealment when O’Brien did not answer the door when police went to his house to question him.
"I think the judge was wonderful and very fair. He made us understand," said Doris Knowles, O’Brien’s personal assistant.
Romley said he doesn’t believe O’Brien has ever taken responsibility for the crime and Gerst never mentioned a previous hit-and-run O’Brien was involved in in a parking lot in October 2002.
And the judge didn’t give enough weight to the fact that O’Brien lied for 20 years about his knowledge of child molesting priests until he was forced by a criminal investigation to acknowledge he covered for them, Romley said.
"I think we have done a disservice not just to the Reed family, but the justice system," Romley said.
Child molestation victims and their parents spoke at the presentence hearings and told how O’Brien ordered them not to tell authorities.
"I really feel that he belongs in jail," said Mark Kennedy, who has accused a former Scottsdale priest of molesting him more than 20 years ago.
Defense attorney Patrick McGroder said Gerst gave the sentencing a thoughtful analysis.
"It’s a very proud day for the judiciary," McGroder said.
O’Brien’s sister, Jeanne Dearing, said sitting in on the trial had been a "torturous experience" for her and for O’Brien. The former leader of the Roman Catholic Diocese of Phoenix seemed to need help standing up as he went into the courtroom Friday clutching a tissue and appearing pale.
"He could hardly walk," Dearing said. "Of course he was thinking the worst."
But the lack of jail time in the sentence turned the day around, she said. The 1,000 community hours would be no problem for O’Brien and he would probably do even more, she said.
"I’m so happy. Justice was served on an innocent man," she said. "Of course we are so sorry about the Reed family. The bishop, let me tell you, he shares in that suffering."
Also a regular at the trial was Kathy Gabrielson and other women from Our Lady of Perpetual Help in Scottsdale.
"We’re thrilled," Gabrielson said after the sentencing. "We can’t express our joy."
The bishop who replaced O’Brien as head of the Phoenix diocese, Thomas J. Olmsted, said in a news conference after the sentencing that he was glad O’Brien received no jail time. He said he has every confidence O’Brien will meet the terms of his probation.
O’Brien will continue to play a role at the diocese, saying Mass on occasion and sharing his knowledge of the institution.
"I think he could be a great help to me in understanding the history of the diocese," Olmsted said.
Comparing cases: Judge Stephen Gerst of Maricopa County Superior Court examined 99 hit-and-run cases involving death or serious injury from 1996 to the present in reaching his decision on Bishop Thomas J. O’Brien’s sentence. Here is a sampling of those cases:
• The defendant was sentenced to 2 3 /4 years in prison. He struck a vehicle from behind on a freeway ramp, backed up and fled and abandoned the vehicle without returning to the scene. It also was the defendant’s sixth felony.
• The defendant got three years for killing a pedestrian and fleeing. Alcohol was involved.
• The defendant got six months in jail by agreement with prosecutors. The defendant seriously injured a pedestrian and crashed into a parked police car while trying to flee. Alcohol was involved.
• The defendant was given a deferred jail sentence that was eventually deleted. She hit a pedestrian who was walking on Interstate 17, then tried to cover up the crime by smashing the vehicle with a baseball bat to make police believe she was attacked.
• The 60-year-old defendant was given a deferred jail sentence of six months, which has been deferred a second time. She struck two bicycle riders from behind — a 16-year-old boy who died and a 14-year-old boy who was seriously injured. The woman then drove 28 miles to a casino with a smashed windshield that caused a whistling from the wind. She told police it was dark, she had no cell phone and she didn’t know she hit a person.
Probation: 4 years
Community service: 1,000 hours, including hospital visits to dying and severely injured people
Driver’s license: Suspended for five years