Albany Diocese Wins Ruling on Abuse Records

By Brendan J. Lyons
Albany Times Union
February 7, 2014

Gary Mercure, the New York priest accused of raping two altar boys in the 1980s, is sentenced in Berkshire County Superior Court.


The Albany Roman Catholic Diocese will not have to turn over nearly 40 years' worth of sexual abuse records after a federal appeals court on Friday ordered the dismissal of a lawsuit filed against the diocese in Vermont by a Warren County man who was taken across state lines and raped by an Albany priest.

The ruling by the U.S. Court of Appeals for the Second Circuit found that a Vermont-based U.S. District Court judge, William K. Sessions III, erred when he ruled the Albany diocese had strong enough business ties to Vermont to be sued in that state, where the victim's claim was not time-barred under the statute of limitations. The federal lawsuit, filed in Burlington, remains standing against the priest, Gary Mercure, who is in prison for raping two altar boys.

A three-judge panel that issued the decision also noted that had the diocese been forced release decades worth of internal sexual abuse files, that disclosure could not be undone if another court overturned the case on appeal following any trial.

"There is no evidence that this information has previously been disclosed. The cat is still in the bag, and the ensuing litigation will inevitably let it out," the judges wrote. "Moreover, unlike a run-of-the-mill tort case, this litigation implicates significant confidentiality interests for the diocese, its priests, and (more alarmingly) other victims (and their families) who would likely be subjected to distressing depositions, revisiting pasts that would not otherwise be revisited in a case solely against Mercure."

The judges compared their decision to dismiss the lawsuit to a 2010 ruling by the same court that barred pretrial disclosure of "confidential reports of undercover New York City police officers protected by the law-enforcement privilege." They cited wording in the earlier ruling that "once the cat is out of the bag, the right against disclosure cannot later be vindicated."

The 37-year-old man who filed the lawsuit was raped by Mercure in New York, Vermont and Massachusetts, beginning in the late 1980s when he was an 8-year-old altar boy in Queensbury, according to court records.

Vermont attorney Jerome F. O'Neill said his client sought access to the Albany diocese's internal sexual-abuse files dating to 1975, which the federal judge in Vermont had granted. Those records have never been made public or disclosed in litigation.

"We will continue to pursue the case against the diocese's priest and we expect that to go forward," O'Neill said. "The diocese will spend any amount of money it needs to prevent the truth from coming out; that's evident by the efforts they went to in connection with this case."

Although the diocese has confirmed allegations of rape or sexual abuse by numerous priests through the years and removed them from ministry, Mercure is the only Albany priest convicted of sexual abuse of a minor. In 2011, he was sentenced to up to 25 years in prison in Massachusetts for raping two altar boys, including the victim in the Vermont case, during skiing trips in Berkshire County, Mass.

Rape allegations against Mercure became public in 2008 during an investigation by Warren County District Attorney Kathleen Hogan, who determined New York's statute of limitations prohibited prosecution and referred it to Massachusetts, where Mercure could still be prosecuted.

Albany diocese spokesman Kenneth Goldfarb said the decision "speaks for itself. ... The diocese of Albany sought relief based on what it believed to be a different interpretation of law as it applied to jurisdiction in this case."

"We would only wish to again stress that sexual abuse of a minor is a crime and an egregious sin, and that this Catholic community is deeply concerned about the well-being of anyone who has suffered abuse at anytime or anywhere," Goldfarb added. "The Albany diocese long ago embraced its moral obligation to assist individuals abused at any time by Albany diocese clergy, and we again would welcome the opportunity to offer assistance in this case."

Friday's ruling was prompted by a writ of mandamus filed by the diocese. It argued the district court's ruling on jurisdiction and the release of 40 years' worth of abuse records was so egregious that it warranted an immediate, pretrial review by the appeals panel. The appellate court, after reviewing the ruling, agreed with the diocese.

The appellate panel said Sessions' analysis was "clearly erroneous."

"Subjecting the diocese to suit and the resultant foray into sensitive documents — investigations into allegations of sexual abuse by its employees — when the case would be time-barred if brought in New York ... constitutes 'exceptional circumstances' warranting the 'extraordinary remedy' of a writ of mandamus," the panel said.

The Albany diocese argued it has no legal ties to the Burlington, Vt., diocese, and therefore cannot be sued in that state for the actions of a rogue priest.

O'Neill argued the diocese's business records showed ties between the neighboring dioceses, including documentation that priests from Albany occasionally ministered at parishes in Vermont under authorization from Bishop Howard Hubbard.

More than 560 pages of Mercure's personnel files were turned over last year to the victim's attorney. Mercure has been accused of raping, sexually abusing or exposing himself to at least seven boys beginning in the early 1980s.



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