Times Union [Albany NY]
December 31, 2022
By Brendan J. Lyons
The Archdiocese of New York recently was ordered to turn over more than 120 pages of confidential files related to an internal investigation of sexual abuse claims against Howard J. Hubbard, who was bishop of the Albany diocese from 1977 to 2014.
The ruling by state Supreme Court Justice L. Michael Mackey capped a roughly two-year period in which the Roman Catholic Diocese of Albany, Hubbard and the New York archdiocese have lost a series of court decisions in which they sought to limit the materials that would be turned over to attorneys for hundreds of alleged victims of child sexual abuse.
The records included the psychological treatment records of suspected pedophile priests, a lengthy deposition of Hubbard that took place over four days in April 2021 and, now, the archdiocese’s internal records on Hubbard’s “Vos estis lux mundi” investigation — initiated under a 2019 directive from Pope Francis that established procedures for bishops and other church superiors to be held accountable by the Vatican for any sexual abuse that they committed or covered up.
Although the archdiocese’s records on Hubbard include more than 1,400 pages, Mackey noted in his recent decision that most of those documents — which he initially reviewed “in-camera” to determine whether they must be disclosed as evidence — had already been made public in court filings. But the judge instructed the archdiocese to turn over its remaining records on Hubbard to JoAnn P. Harri and Martin D. Smalline, Albany attorneys who represent a woman — identified in her court case as “Harper Doe” — who alleges she was abused by Hubbard, former priest Francis P. Melfe and another priest over the course of three years beginning in 1977, when she was 13.
Hubbard, who has been accused of child sexual abuse by at least 10 individuals, has denied sexually abusing anyone. In an extraordinary development last month, the former bishop announced he had formally asked the Vatican to permanently remove him from being a member of the clergy. He declined a request to be interviewed about his decision, referring to it through a spokesman as “a private matter” between him and the Vatican.
In March, Smalline and Harri subpoenaed the archdiocese for Hubbard’s disciplinary files after an attorney for the Albany diocese informed them they did not have those documents. The archdiocese subsequently waged a legal battle seeking to block the release of its records on Hubbard, arguing the documents were constitutionally protected under the religious clauses of the First Amendment.
Michael L. Costello, an attorney for the Albany diocese, said during a hearing in the case that while he supported the archdiocese’s position that the records should not be released, he had not submitted any legal briefs on the issue. Hubbard’s attorney, Terence P. O’Connor, also did not seek to intervene in the matter.
“On behalf of our client Harper Doe and all the survivors of clergy sexual abuse in the Albany Diocese, we applaud Judge Mackey’s decision ordering the Archdiocese of New York to produce substantially all of the documents contained in Bishop Hubbard’s Vos Estes file, except for those already available in the public record,” Smalline and Harri said in a statement. “We believe this disclosure, along with Bishop Hubbard’s decision to request laicization from the Vatican, sends a clear message that the Albany Diocese and its bishops are accountable and are no longer above the law.”
The archdiocese has not indicated whether it plans to appeal the decision by Mackey. The ruling came nine months after Hubbard’s lengthy deposition was made public by an earlier decision from the judge. During that deposition last year, Hubbard conceded that the diocese had systematically concealed incidents of child sexual abuse and did not alert law enforcement agencies when they discovered it, saying their actions were, in part, intended to avoid scandal and preserve “respect for the priesthood.”
The series of court losses for the Catholic church and Hubbard have unfolded as attorneys for hundreds of alleged victims who filed Child Victims Act claims against the Albany diocese have noted that the diocese fought nearly every pre-trial discovery request for its internal files on clergy abuse. Those legal battles, including appeals, have dragged out the litigation at a time when many victims, accused abusers and witnesses are beginning to die as they grow old, the attorneys said.
“The diocese has fought the survivors in (pre-trial) discovery at every level,” said Cynthia S. LaFave, an attorney for dozens of alleged child sexual abuse victims. “The diocese has fought to keep secret the files of abusive priests and other crucial documents the survivors are entitled to under New York law. … The diocese has settled cases on the eve of trial because the diocese does not want the public to hear the depth and scope of the atrocities the diocese allowed to be inflicted upon so many children over the course of decades.”
In the past several months, as negotiations for a “global settlement” have stumbled, the diocese has settled several cases that were scheduled for trial. But more cases are on the trial calendar next year, and the diocese has warned repeatedly that it may need to file for bankruptcy if those go forward.
Earlier this month, attorneys representing the hundreds of plaintiffs who have filed child sexual abuse lawsuits against the Albany diocese urged Mackey to reject the diocese’s request to “pause” the trial calendar for three months while the organization seeks a settlement with the alleged victims.
But those settlement talks, while not dead, remain tenuous as attorneys for the alleged victims said recently they were going nowhere and that nothing meaningful had developed since they rejected an earlier, confidential settlement offer that had been made by the diocese over the summer. They characterized the diocese’s initial offer as “insultingly low.”
Taylor Stippel, an attorney with Jeff Anderson & Associates, which has more than 190 claims pending against the diocese, told the judge two weeks ago that members of the plaintiffs’ liaison committee “unanimously believe the mediation is at an insurmountable impasse. … This global mediation is going nowhere, and it’s done.”
Costello, the diocese’s longtime attorney, asked for patience from the attorneys during that hearing and noted that he was working with diocesan officials and private financial consultants to ascertain the funds that could be made available for any global settlement from more than 100 parishes and schools across the 14-county diocese. He said that type of settlement would also be beneficial to roughly 140 plaintiffs whose claims may not be covered by the diocese’s insurance policies.
Costello also warned — as the diocese has done since June — that it may need to file for bankruptcy if cases begin going to trial with the potential for substantial verdicts and high court costs. He again noted that the fees associated with a bankruptcy proceeding could top $600,000 a month; that’s money he said the diocese would rather preserve for the hundreds of victims of child sexual abuse.
Some of the plaintiffs’ attorneys have instructed the diocese to go ahead and file for bankruptcy, noting that proceeding would also result in a public disclosure of the diocese’s assets and liabilities.
Stippel told the judge that a bankruptcy proceeding would bring “a significant amount of accountability that Mr. Costello is ignoring … that the diocese doesn’t have to face as part of this global mediation process where the diocese gets to pick and choose as gatekeeper what it decides to share with the survivors about its finances, about its insurance, about the bigger picture. … Perhaps the diocese is endeavoring to stay out of Chapter 11 because Chapter 11 would bring some accountability that this global mediation process doesn’t have.”
In a statement Friday, Stippel said the Albany diocese “has spent the last three-and-a-half years fighting tooth and nail to avoid accountability, just as it has done for decades. The diocese’s actions since the Child Victims Act passed demonstrate that it has not changed. It is the same institution that betrayed over 400 children over the course of decades because it prioritized its public image over the protection of our community’s most vulnerable.”
Mackey has not issued a ruling on the diocese’s request to stay any pending trials for 120 days.
“The Roman Catholic Diocese of Albany remains committed to continuing a path to advance fair and timely resolution of survivor claims through mediated settlements with the assistance of the court,” Kathryn Barrans, a spokeswoman for the diocese, said Friday. “We also plan to continue building on our Hope and Healing effort, working together to accompany all survivors on the road to healing.”
Written By Brendan J. Lyons
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 firstname.lastname@example.org or 518-454-5547.