Top Court to Hear Ex-Priest's Appeal
Clark Seeks Retrial in Sex-Abuse Case
By Peter Smith
The Courier-Journal [Kentucky]
October 14, 2006
For the first time next month, the Kentucky Supreme Court will hear an appeal on a criminal conviction stemming from the sexual-abuse scandal in the Roman Catholic Archdiocese of Louisville.
The lawyer for Daniel C. Clark -- who has served three years of a 10-year sentence for molesting two Bullitt County boys -- says the former priest deserves a new trial because a judge allowed testimony that he should have excluded and excluded evidence that he should have allowed.
The lawyer, David Lambertus, also argues that Bullitt Circuit Judge Thomas Waller failed to instruct the jury correctly.
Clark, 58, who was removed from the priesthood in 2004, was one of the clerics at the center of the archdiocese's sexual-abuse scandal.
He was accused in 19 lawsuits against the archdiocese -- including one filed by the Bullitt County boys' mother on their behalf. The archdiocese eventually settled all the cases.
The appeal centers on Clark's 2003 conviction on two counts of first-degree sexual abuse for molesting two boys between 1999 -- when one was 8 years old and the other 9 -- and 2002.
Clark and Lambertus declined interview requests. The victims' family has an unlisted number and could not be reached.
Clark is the only local priest convicted of abuse to pursue an appeal.
James Hargadon died in 2005, a year after his conviction, and two others pleaded guilty -- Louis A. Miller and Edwin Scherzer. A former priest, Bruce Ewing, still awaits trial.
Although dozens of priests were accused in lawsuits against the archdiocese, many had died, while in other cases victims did not pursue criminal charges or the alleged acts were misdemeanors that could not be prosecuted because of the statute of limitations.
Jeff Koenig of Louisville -- who accused Clark of abuse in a lawsuit that the archdiocese later settled -- said it's "scary that he could walk on this deal" but believed prosecutors still have a strong case if Clark gets a new trial.
"From the evidence I witnessed as a spectator (at the first trial), I don't have any concerns there if he gets a retrial, because it was pretty cut and dried," Koenig said.
The Kentucky Court of Appeals rejected Clark's claims last year by a 2-1 vote, but the Supreme Court agreed to review them. Arguments are scheduled for Nov. 15.
Lambertus argues that Waller shouldn't have allowed the jury to hear testimony from a man whom Clark molested in the 1980s and whose case was part of Clark's first conviction on sexual-abuse charges in 1988. Clark was sentenced to three months in that case.
The testimony was "clearly not … acceptable," Lambertus argued in court documents, because it violated rules of evidence barring testimony intended to show that a defendant has a criminal disposition.
But Assistant Attorney General Susan Lenz said the testimony was needed to rebut Clark's denials that he abused the boys and to show Clark's pattern of befriending boys, then fondling and attempting oral sex on them.
"The reality is Clark was a sexual predator of young boys and he fondled their penises whenever and wherever he could get the boys alone, during times when he was (in a) position of trust with the children," she wrote.
Lambertus also argued that the judge should have allowed him to show a videotape of the two boys being interviewed by a social worker after they had reported the abuse.
He contended that, in the tape, the boys contradicted their trial testimony and were coached into giving certain answers by the social worker.
"A child of tender years is more open to suggestion than an adult because he/she will follow an authority figure's lead," Lambertus wrote. "… Such suggestive and coercive questioning calls into question the believability of the children's testimony."
However, Lenz said the judge was right to exclude the testimony because Lambertus never asked the boys about it in his cross-examination, which would have given them the chance to explain any discrepancies.
The videotape issue is the only one that the appeals court split on.
Two members, Chief Judge Sara Combs and Judge David Barber, upheld the verdict, while a third, Senior Judge John Miller, dissented, saying the tape should have been admitted "in the interest of justice."
The third dispute centers on the fact that one of the boys turned 12 years old in late 2001 -- during the 1999-2002 period in which prosecutors said the abuse would have occurred.
State law says that certain sexual acts are a felony on a child under 12, but the same acts are a misdemeanor for a child who's 12 or 13, bringing a lighter punishment.
Lenz argued that both boys said they were repeatedly molested for years by Clark, who had befriended the family, given it financial help and often taken the boys to athletic activities or for food.
"The jury could have believed that Clark was guilty of abuse of (the boy) when he was both under twelve and twelve," Lenz wrote.
Koenig had sought to bring a criminal case against Clark for allegedly abusing him in the early 1980s. He said police told him that because he was older than 12 when the abuse occurred, it was a misdemeanor and could not be prosecuted under the statute of limitations.
Felonies in Kentucky have no time limit for prosecution.
Koenig is lobbying to change state law to make it a felony to molest older children as well.
"This is a perfect example of why these laws need to be changed," he said.
Reporter Peter Smith can be reached at (502) 582-4469 or firstname.lastname@example.org.
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