Dallas Resources – December 1997
By Brooks Egerton
For the second time, Judge Pat McDowell has asked the Texas Supreme Court to help settle disputes about whether state District Judge Anne Ashby can fairly hear a series of Catholic clergy-abuse cases.
As presiding judge for the judicial region that includes Dallas County, he normally hears recusal motions such as those filed against Judge Ashby. Plaintiffs' attorney Sylvia Demarest has repeatedly asked Judge McDowell to step aside, saying he has a conflict of interest because of ties to the Catholic Diocese of Dallas.
He has denied having a conflict. And, until last week, he insisted on picking a judge to study the latest recusal motions, which came from the diocese's co-defendants in cases alleging sexual abuse by defrocked priest Robert Peebles and suspended priest William Hughes.
In a Dec. 2 letter asking Supreme Court Chief Justice Tom Phillips to make the choice, Judge McDowell said he didn't think "that there are any factual or legal reasons which would disqualify me. " But, he continued, "it is also obvious that these cases are not going to get moving as long as I am in the immediate picture.”
Justice Phillips has appointed state District Judge Robert Brotherton of Wichita Falls to hear the motions, a choice that went against Ms. Demarest's wishes. She had recommended another judge from the Wichita Falls area, Roger Towery, whom Justice Phillips named to hear an earlier recusal motion against Judge Ashby.
That earlier motion came from the diocese, which said Judge Ashby had showed bias toward plaintiffs in the case of suspended priest Rudolph "Rudy" Kos and sought to prevent her from hearing key post-trial motions. Judge Towery disagreed and kept Judge Ashby on the case.
Defendants filing the recusal motions pending now include the Archdiocese for the Military Services, under whom Mr. Peebles was serving as a chaplain when some abuse is alleged to have occurred, and Dr. Ray McNamara, a diocese-affiliated psychologist accused of misconduct in both the Peebles and Hughes cases.
All the defendants are fighting charges that they conspired to cover up abuse. Most have denied wrongdoing, though Mr. Peebles has admitted molesting several boys.
The first round of controversy involving Judge McDowell began last summer after jurors in the Kos case awarded 11 plaintiffs $119.6 million, the largest clergy-abuse judgment in history. The diocese quickly sought to prevent Judge Ashby from hearing motions for a reduced judgment or new trial.
Ms. Demarest and her fellow attorney in the Kos case, Windle Turley, asked Judge McDowell not to hear that recusal motion after he said he was a "cradle Catholic" who gave money at church. He declined, then relented, after revelations that he'd privately told a lawyer close to the diocese that he would "keep the case."
In the current fight, Ms. Demarest recommended reappointing Judge Towery because of "considerations of judicial economy, convenience and the need to avoid conflicting judicial rulings. " The latest recusal motions against Judge Ashby are "virtually identical" to the last one, she wrote in a Dec. 5 letter to Justice Phillips.
The defendants now seeking recusal disagreed and had urged Judge McDowell to stay involved. After the dispute was forwarded to Justice Phillips, they called on him not to automatically reappoint Judge Towery.
In a letter to the justice, an attorney for Dr. McNamara cited one argument that the diocese made unsuccessfully in attempting to disqualify Judge Ashby: that remarks she made outside the jury's presence had shown favoritism toward the plaintiffs.
But the lawyer, Michael Gerstle, also covered new ground. He maintained that the judge wrongly allowed Dr. McNamara to be called as a witness in the Kos case, which "effectively denied [him] the assistance of counsel.”
By Michael Saul
Attorneys for suspended Catholic priest Rudolph "Rudy" Kos have decided against seeking a change of venue in the felony sex-abuse trial facing their client, despite media attention surrounding the allegations and a recent civil trial.
Mr. Kos, 52, pleaded not guilty to the eight charges during two arraignments this year. The charges involve four young men who told police that Mr. Kos molested them more than 1,350 times.
Jury selection is scheduled to begin March 23 in state District Judge Janice L. Warder's court at the Frank Crowley Courts Building.
"I have come to the conclusion that given adequate time we can get a fair jury here in Dallas County, that is a jury that can presume he is innocent and hold the state to their burden of proof," said Brad Lollar, one of Mr. Kos' court-appointed attorneys. "The publicity is pervasive throughout Texas . . . so it's not going to help us to move it out of Dallas County."
In discussions with prosecutors and the judge, three cities emerged as possible alternative sites - Georgetown, Amarillo and Lubbock, Mr. Lollar said. These locations would offer a smaller and less broad-based jury pool compared with Dallas, he said.
"I did not see the advantage of going to any of those three rather than staying in Dallas County," Mr. Lollar said.
Assistant District Attorney Howard Blackmon, the lead prosecutor on the case said he, too, believes that Mr. Kos will get a fair trial in Dallas County.
"It's probably better that he is judged in the community where he committed these offenses," Mr. Blackmon said. "His lawyers think he can get a fair trial. We think so, too." A civil jury found in favor of 11 plaintiffs and returned a $119.6 million judgment against Mr. Kos and the Catholic Diocese of Dallas in July - the largest clergy-abuse judgment in U.S. history.
The jury found that the church covered up the abuse and urged church leaders to "admit your guilt. " Mr. Kos never showed up for the civil trial. At its start, state District Judge Anne Ashby found him liable for the abuse because he never responded.
Mr. Kos remains jailed at the Lew Sterrett Justice Center in lieu of $400,000 bail. Mr. Lollar's appeal of the judge's Oct. 31 decision not to lower Mr. Kos' bail is pending.
Although Judge Warder has the authority to relocate the criminal trial on her own, she said Wednesday that she would not change the venue without the attorneys raising the issue.
Mr. Lollar, who is preparing a special questionnaire to help select the jury, said there have been no discussions about a plea bargain.
The charges allege that Mr. Kos abused the boys - who ranged in age from 12 to 16 - from the late 1980s to the early 1990s, when he was a priest at St. Luke Catholic Church in Irving.
Two of the young men told police that Mr. Kos molested them as many as 400 times each. One told police that Mr. Kos molested him 550 times over seven years.
Mr. Kos was indicted on three counts of aggravated sexual assault of a child, one count of sexual assault of a child and four counts of indecency with a child. The aggravated sexual assault charges carry up to a life sentence and a $10,000 fine on each count.
In four of the cases, Mr. Kos is accused of using the boys' feet to gratify himself sexually. In the other four cases, Mr. Kos is accused of performing oral sex on the boys.
Mr. Kos admitted the molestation to an insurance agent, a psychiatrist and one of the boys' parents, police said. In an interview with the psychiatrist in 1992, Mr. Kos "estimates that he has been sexual with about 20 minors," records show.
At least one of the young men involved in the criminal case told police he was also molested multiple times while in Ellis County.
Authorities in Ellis County said Wednesday they are waiting for the complainants to contact them.
Irving police Detective Randall Johnson testified earlier this year in a preliminary hearing that he knows of no witness to any of the alleged abuse.
Mr. Kos' attorney said Wednesday the credibility of the complainants will be a crucial part of the case. The number of times the complainants say they were molested, if they were molested at all, is "grossly exaggerated," he said.
"There are not enough hours in the day for Mr. Kos to have done as much molesting as they have alleged," Mr. Lollar said. "He was the head of a church, and he had all of the responsibilities of running the church. Given that and that is a full-time job, to think in a 24-hour period, in a day's time, you could fit in 15 or 20 molestations stretches credibility."
Mr. Blackmon said he sees no problems with the complainants' credibility.
"I will be more interested in what the jury thinks than Mr. Lollar's
opinion," Mr. Blackmon said. "One jury has already heard about
the abuse and apparently it made quite an impression on them.”
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