Bid to Disqualify Judge in Priest Abuse Cases Rejected

By Sam Hemingway
Burlington Free Press [Vermont]
January 25, 2007

An administrative judge has rejected for the second time an attempt to have Judge Ben Joseph removed as the presiding judge in court proceedings involving claims of long-ago child sex abuse by Catholic priests in Vermont.

Judge Amy Davenport, writing in a seven-page decision made public Wednesday, ruled that Joseph could preside in an upcoming "sanctions" hearing involving the conduct of William O'Brien, an attorney for the state's Roman Catholic Diocese.

O'Brien had sought to have Joseph disqualified from presiding at the hearing. O'Brien, through his attorney, claimed Joseph exhibited bias against O'Brien for remarking during an October court hearing that "wrongdoing" might have occurred in connection with the church's tardy discovery of 27 years of church personnel records.

"Judge Joseph's use of the word 'wrongdoing' did not imply that he had prejudged who, if anyone, was responsible for the failure to produce the missing records," Davenport wrote, adding, "He has not prejudged whether sanctions were even appropriate."

The ruling is the latest chapter in a long-running battle between two Burlington-area lawyers over cases involving claims of past priest sexual abuse.

O'Brien has represented the diocese for 16 years. Jerome O'Neill presently has 27 cases pending in Chittenden County Superior Court against the diocese and has represented victims of priest sex abuse since the early 1990s.

In the case at hand, O'Neill claims O'Brien for nearly two years withheld church personnel records in connection with a case filed by O'Neill on behalf of a former Newport altar boy who alleges he was molested by the Rev. George Paulin in the 1970s. The Burlington Free Press does not publish the names of alleged victims of sexual abuse without the person's consent.

The personnel documents were found by another church attorney last year and turned over to the court for review just after O'Neill asked Joseph to conduct a "sanctions" hearing to determine if O'Brien should be punished for the delay.

O'Brien's attorney, Ritchie Berger, also accused Joseph in court papers of "baiting a trap" for the diocese by not making public his earlier doubts about the true status of the unaccounted-for church records. Berger's claim drew a sharp rebuke from Davenport.

"An accusation by an attorney against a judge of this gravity made so publicly with such little support in the record is deeply disturbing," she wrote. "Apparently baseless accusations impugning a judge's character not only fail to accomplish their intended purpose of support for the disqualification motion, but, worse, demean the profession."

Davenport also took issue with a claim made by O'Neill in his filings that O'Brien was engaging in judge-shopping by trying to get Joseph off the case. O'Neill, in a court filing, claimed O'Brien wants to have Judge Matthew Katz preside over the sanctions hearing because O'Brien knows that Katz "disfavors sanctions motions" as a rule.

"O'Neill's prognostications not only fall into the category of rank speculation, but appear to exhibit the improper 'judge-shopping' motivation that he purports to criticize," she wrote.

Berger said he was disappointed with Davenport's ruling and declined comment on Davenport's criticism of the "baiting a trap" remark. "We will now proceed to a vigorous contesting of everything alleged in the plaintiff's motion," Berger said.

O'Neill said he was pleased with the decision and was also looking forward to the sanctions hearing. He said he will ask Joseph to issue a default ruling in favor of his client as punishment for the delay in producing the church records.

"Our objective is to get our day in court for our client," O'Neill said. "This case could have been tried six months ago, if not for all these delays."

The diocese unsuccessfully sought to have Joseph removed from presiding over the priest abuse cases in May, shortly after it agreed to a $965,000 settlement in a case brought by O'Neill.

Contact Sam Hemingway at 660-1850 or e-mail at shemingway@bfp.burlingtonfreepress


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