Pre-trial battles form as Albany diocese fights release of records

Times Union [Albany NY]

February 27, 2022

By Brendan J. Lyons

Last August, former Bishop Howard J. Hubbard reflected on his handling of decades of child abuse allegations in the Roman Catholic Diocese of Albany, noting that his “most fervent prayer each day is that victims … and their families will find healing, reconciliation and peace in God’s love and that we as a church and a society will learn from this tragedy.”

The remarks by the bishop emeritus, who headed the diocese from 1977 to 2014, were made in an extraordinary opinion piece that was published in the Times Union on Aug. 13 — the final day that alleged victims of childhood sexual abuse could file claims under New York’s Child Victims Act, which had lifted the statute of limitations for two years.

Hubbard, who is among numerous clergy facing allegations of sexually abusing children, wrote in his op-ed that the diocese’s response “fell short,” and he admitted church officials had failed “to fully understand the impacts on victims and survivors.” (Hubbard has denied the numerous allegations of sexual abuse leveled against him.)

But for many victims, according to their attorneys, the “healing” they seek may rely on a full disclosure of why the diocese, as Hubbard has acknowledged, covered up the chronic sexual abuse for decades by secretly shuffling priests in and out of treatment, or moving them from parish to parish without warning congregations about their criminal behavior.

“Only when a licensed psychologist or psychiatrist determined the priest was capable of returning to ministry without reoffending did we consider placing the priest back in ministry,” Hubbard told the Times Union last year. “The professional advice we received was well-intended but flawed, and I deeply regret that we followed it.”

Facing roughly 300 lawsuits since the Child Victims Act went into effect in August 2019, the diocese has quietly waged an aggressive effort in court to conceal records that may reveal more about its handling of sexual abuse cases. The diocese’s longtime attorney, Michael L. Costello, has asserted in court papers their actions were “in conformity with professional best practices … at the time.”

But attorneys for many of the alleged victims who have filed lawsuits against the diocese, or against Hubbard and other clergy members, contend the church is not being transparent as it seeks to block efforts for full disclosure to the public and the victims of what took place. 

Some attorneys contend the diocese’s legal challenges to fight disclosure of their internal records may be motivated by a desire to limit their financial liability and to prevent the church from suffering more public shame.

“The church still wants to hide the details,” said Cynthia S. LaFave, an attorney for dozens of alleged victims who are suing the diocese. 

She said the Child Victims Act was meant to both provide a path to justice for victims and to reveal the details of what happened, including how it was allowed to go on without criminal repercussions for those who sexually abused children or covered it up.

The law was meant “to uncover the horrors of the child sex abuse that has occurred in the past, and … the disclosure is necessary,” LaFave said. “They were finally given a voice, but the voice doesn’t mean anything if the truth doesn’t come out with it. … Only the whole story will free these survivors from what they are suffering from, and allow them to understand that it was not their fault and they were children and should have been protected.”

Jason Sandler, an attorney who specializes in sexual abuse cases, said the diocese’s records may reveal more about how it hid allegations of sexual abuse from the public as well as the parents of many victims.

“Albany engaged in a pattern and practice of hiding abuse and shuffling around priests from parish to parish, and certainly these priests’ personnel files would reflect that — and also reflect that some of these priests may have gotten psychological treatment and then (were) put back into ministry at a parish where they would be around children,” Sandler said. “I personally have never heard of a pedophile being cured after treatment.”

For their part, the diocese issued a statement Friday saying they have been responsive to the demands of attorneys for the alleged victims and have “consistently” complied with court orders directing them to turn over materials. 

“In some cases, the diocese has appealed court rulings for further guidance, but we comply and will continue to comply with all court orders,” the statement reads.
The records the diocese has opposed turning over include the medical and psychological treatment records of accused priests.

The diocese’s attorneys argued before an appellate court in December seeking to uphold a judge’s dismissal of a case filed by a victim who signed a release in 2016 in order to receive a $90,000 settlement to pay for his counseling. In that case, the plaintiff is a victim of Gary Mercure, a former Albany priest who is imprisoned in Massachusetts for raping and sexually abusing altar boys. The appellate division has not issued a decision in the case.

The diocese, and Hubbard’s defense attorneys, also have sought to prevent victims’ attorneys from obtaining the records of other clergy found to have committed sexual abuse in unrelated cases, arguing that the materials are privileged and their release through pre-trial discovery would be prejudicial. 

“While we have been completely transparent with respect to the release of files of alleged offenders, we have taken the position to oppose the release of the names of victim/survivors in unrelated cases, believing any attempt by plaintiffs’ counsel to reach out to a former victim/survivor risks significant harm by way of retraumatization or revictimization of that person,” the diocese said in a statement.

However, attorneys for the plaintiffs have noted in their appellate briefs that the trial court had ordered the redaction of the names of those victims from the records before they would be turned over.

The attorneys for many of the alleged victims said they are seeking the diocese’s broader confidential records documenting the handling of abuse cases to determine whether the diocese — and Hubbard — enabled and concealed a “culture of pedophilia,” according to court documents. Those records include the files of about 50 priests that the diocese has determined were “credibly accused” of abuse.

Hubbard has also fought the public release of his own deposition, which remains subject to a protective order that has prevented its public disclosure. The deposition was taken last April over a period of four days, when Hubbard answered questions from multiple attorneys representing dozens of victims.

Terence P. O’Connor, Hubbard’s attorney, has asserted the bishop’s deposition should remain confidential and “under seal” in order to prevent cases from being “litigated in the press and (leading to a) poisoning of the jury pool.”

“It isn’t to hide it from the public. … Obviously, when the case goes to trial it’s all going to be public,” O’Connor argued before state Supreme Court Justice L. Michael Mackey during a hearing in December. “The concept of it was … instead of arguing our case in public and instead of having the lawyers go after the different parties in public … instead of trying to position the public to one side or the other, we’d zip it until the time it came to trial.”

Attorneys for many of those victims, citing Hubbard’s public statements to the Times Union last year, have countered that the judge should lift the protective order and unseal at least portions of that deposition, which they said would reveal “misrepresentations” and “one outright lie” in Hubbard’s August 2021 op-ed in the Times Union.

In the December hearing before Mackey, attorneys for victims who have filed lawsuits against the diocese or Hubbard argued that the former bishop’s public statements last year had misled the public.

As a result of Hubbard’s op-ed, “There is not only confusion, but I think there is a misunderstanding of very important facts in the public about what went on in the Diocese of Albany over all these years,” Jeffrey M. Herman, an attorney who specializes in sexual abuse cases, told Mackey during the December hearing. “I think the public has the right to know the truth.”

Mackey has ruled both for and against the diocese in the legal battles, several of which have moved to the appellate level. On the disclosure of the treatment records of pedophile priests and of the broader personnel files of abusive clergy, he has sided with the victims in his rulings.

In a case involving Francis P. Melfe, a deceased former Schenectady priest named in multiple child sex abuse claims, a midlevel appeals court in Albany last summer upheld Mackey’s decision ordering the diocese to turn over records related to six priests who were removed from ministry for molestation allegations in 2002 — after the U.S. Conference of Bishops mandated a zero-tolerance policy for pedophilia.

In that case, the plaintiffs had not sought the treatment records of those priests. Rather, they sought only files that “involve the complaints and correspondences (forming) the basis of the discharges” or job transfers of those priests. They also asked for correspondence between the diocese and the Archdiocese of New York concerning the discharges or transfers.

Melfe is on the diocese’s list of priests credibly accused of sexual abuse. He worked at St. Patrick’s Church in Albany from 1969 to 1970, and also was a pastor at the Immaculate Conception Church in Schenectady from 1969 to 1979, when he left the priesthood.

He is accused of sexually assaulting and physically and mentally abusing children over a period of more than 10 years, including forcing their inebriation.

In another case that went to an appeals court recently, the diocese is seeking to overturn Mackey’s order that it turn over the records — without a protective order that would keep them secret — of more than 48 abusive priests over a period spanning 1946 to 1999. The plaintiff in that case also is seeking records outlining “sexual deviancy” treatment of the Rev. Edward Pratt, a former vice chancellor who was once Hubbard’s second in command, as well as the other priests.

The alleged victim in that case, Michael Harmon, said he was abused in the 1980s by Pratt, including inside the chancery in a room across the hall from where Hubbard lived. Harmon has said that while Hubbard never abused him, the bishop was aware that the boy would spend multiple nights each week in Pratt’s nearby bedroom. 

In a submission to the Appellate Division of state Supreme Court in Albany, which heard arguments in Harmon’s case earlier this month, Costello, the diocese’s attorney, argued that any evidence of other alleged sexual abuses would be “prejudicial.”

“The varying nature of the allegations in each case, as well as the varying histories of the priests involved and the weighing of credibility as to the allegations are all factors that must be taken into consideration in determining a response to sexual abuse claims,” Costello argued.

Mallory C. Allen, an attorney for Harmon, told the appellate division that the records, including the treatment files on Pratt, should be turned over.

“They may show the diocese knew Father Pratt’s treatment was unsuccessful; they may show the diocese was warned that Father Pratt was a pedophile who would continue sexually abusing children, like Michael, if given access to them,” Allen wrote in a memorandum filed with the court. “They may show Father Pratt admitted to abusing children; and/or, they may show Father Pratt discussed the fact that the diocese was aware that he was abusing children, including before or during Michael’s abuse, and did nothing.”

Brendan J. Lyons is a managing editor for the Times Union overseeing the Capitol Bureau and investigations. Lyons joined the Times Union in 1998 as a crime reporter before being assigned to the investigations team. He became editor of the investigations team in 2013 and began overseeing the Capitol Bureau in 2017. You can reach him at or 518-454-5547.