Judge Rejects Diocese Appeal

By Brendan J. Lyons
Albany Times Union
September 8, 2013

Gary Mercure, the New York Priest accused of raping altar boys in the 1980s and 1990s, at his 2011 sentencing in Berkshire County Superior Court.

A federal judge in Vermont has rejected a request by the Albany Roman Catholic Diocese to dismiss a lawsuit filed by a Warren County man who, as a young altar boy, was taken across state lines and raped by a priest.

The diocese had argued in a fierce court battle that it has no legal ties to the Burlington, Vt., diocese, and therefore could not be sued in that state for the actions of a rogue priest. But Jerome F. O'Neill, an attorney for the victim, used the diocese's business records, which were turned over under a court order, to show ties between the neighboring dioceses, including documentation that priests from Albany routinely ministered at parishes in Vermont under authorization from Bishop Howard Hubbard.

Barring an appeal, the ruling by U.S. District Court Judge William K. Sessions III puts the case on track for trial and exposes the Albany diocese to potentially having to disclose its clergy-abuse records for the first time.

Kenneth Goldfarb, a spokesman for the Albany diocese, said they disagree with the decision.

"The Roman Catholic Diocese of Albany is not based in Vermont, owns no real estate in Vermont, has no bank accounts in Vermont, operates no churches, schools or other facilities in Vermont, and has limited contact with Vermont residents," Goldfarb said. "The diocese believes the proper forum for the lawsuit is New York state and is reviewing the determination by the court."

The 37-year-old victim said he was raped by the priest, Gary J. Mercure, in New York, Massachusetts and Vermont beginning in the early 1980s when he was about 8 years old. The victim filed his lawsuit in Vermont because the statute of limitations there is not as restrictive as New York's, which prevented any claim or criminal action.

Mercure, 65, a longtime priest for the Albany diocese, is serving 20-plus years in a Massachusetts prison for his 2011 conviction on charges of raping two altar boys — including the alleged victim in the Vermont case — during ski trips to Berkshire County. Mercure is a co-defendant in the Vermont lawsuit, along with the Albany diocese.

Mercure has not been removed from priesthood. He was permanently removed from "priestly ministry" following a 2008 diocesan investigation into allegations of sexual abuse filed by a former altar boy at St. Teresa of Avila in Albany, where Mercure was assigned in the early 1980s. Goldfarb said "the diocese has petitioned the Holy See for laicization (of Mercure). We are awaiting a response." He said the application was filed last year but declined to provide a copy to the Times Union, calling it a "personnel matter."

As the Vermont case moves toward trial, the diocese has sought to block a request by the plaintiff's attorneys to turn over its internal records regarding priests and other employees accused of sexually abusing children. The diocese filed motions requesting that its disclosures be limited to Mercure's files, and that the records be subject to a protective order barring O'Neill or anyone else from making them public, including in court filings.

"We're saying no protective order," O'Neill said last week. "They want to hide their dirty linen but they're not going to get any help from us."

O'Neill filed a motion more than a year ago seeking access to the diocese's clergy-abuse records dating to at least the 1970s. The issue was put on hold as the diocese fought to have the case dismissed on jurisdictional grounds.

O'Neill's client is a father of two children who testified at Mercure's criminal trial. He has struggled with drug abuse and still lives in the Glens Falls area, according to people familiar with his background. The Times Union is withholding his name under a policy not to identify alleged rape victims without their consent.

O'Neill has said the diocese "has nothing to fear" if its internal files support the diocese's position that church officials, including Hubbard, were not aware of Mercure's predatory activities prior to 2008, when a criminal investigation of Mercure was launched after a referral made by the Albany diocese. The diocese has said it will "vigorously" defend allegations that it shared any responsibility for Mercure's crimes and that church leaders were not aware of any sexual abuse allegations against Mercure in the 1980s or 1990s.

The victim in the Vermont case testified at Mercure's criminal trial that his mother was a church teacher when he began serving as an altar boy and had regular contact with Mercure at Our Lady of Anunciation in Queensbury. He told jurors Mercure took him out regularly for ice cream and other social events and began raping him in the church's rectory when he was 8 or 9 years old. He said Mercure also brought him to Massachusetts and raped him in the back of a car at Brodie Mountain ski lodge, and raped him again during a swimming trip to Lake Saint Catherine in Poultney, Vt.

Mercure has been accused of raping, sexually abusing or exposing himself to at least seven boys beginning in the early 1980s, including at a now-closed Albany church and grade school, St. Teresa of Avila. Some of Mercure's other alleged victims, including several who testified at his criminal trial, said the abuse continued after Mercure was transferred from Albany to Queensbury and, later, to St. Mary's in Glens Falls.

According to relatives of two of Mercure's alleged victims in Glens Falls, in the mid-1990s the diocese sent Mercure to a church-run hospital near Philadelphia, St. John Vianney, that often provided treatment to pedophile priests. Mercure wrote a letter to parishioners at the time claiming his treatment was due to a nervous breakdown.

Mercure returned to ministry after leaving St. John Vianney, where he was driven back to New York by the parents of two of his alleged victims in Glens Falls.

The mother of those altar boys — both of whom have alleged sexual encounters with Mercure — said that one of her sons told her Mercure tried to kiss him on the family's front porch. At the time, she said, she was unaware her sons had been raped. The mother said she reported the kissing incident to church officials in 2000, but the diocese has said she did not provide enough information for them to take action.

In 2008, the Albany diocese paid $50,000 to the Delmar man whose allegations against Mercure led to his removal from ministry. The victim said he had been sexually abused by Mercure at St. Teresa of Avila in Albany and spoke to the Times Union on the condition he not be identified. He said he was interviewed by a former law enforcement agent hired by the diocese and that a diocesan panel sustained his accusations.

He said he was caught off guard when Michael Costello, a longtime attorney for the diocese, offered him about $30,000.

"I went back and said take your $30,000 and shove it," the man said. "They came back to me and said: 'We'll give you $40,000.' ... I said, 'Wait a second, these guys are going to keep on going.' I went and consulted one of my good friend's brothers who is an attorney. ... I went back to them and I said $50,000 and I'll sign. They sent the check over in less than 24 hours. ... It was so I can't sue them later."

Costello has said he will not comment on his work for the diocese. Goldfarb confirmed the diocese provided "assistance" to the victim.

Last year, another alleged victim of Mercure's at St. Teresa of Avila contacted the diocese and alleged the priest had sexually abused him there in the early 1980s. The man, who asked not to be identified, told the Times Union that Mercure had raped him in the rectory, which is where the other victim who came forward in 2008 said the abuse took place.

Goldfarb acknowledged receiving a new complaint in May 2012 and said the diocese "is seeking to investigate the allegation, pending the cooperation of the individual."

There were other incidents of alleged abuse at St. Teresa of Avila. Several men told the Times Union last year that a janitor at the former school sexually abused them there in the late 1970s. In one of the cases, the diocese "found reasonable grounds to support the ... allegation" after a complaint was filed by one of the victims, who said he was abused by the janitor in 1977, according to a letter written by the diocese's attorney.



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