Judge at Center of Dispute Again
Attorney in Molestation Case Asks If His Ties to Diocese Risk Fairness
By Brooks Egerton
Dallas Morning News
October 28, 1997
Judge Pat McDowell, whose ties to the Catholic Diocese of Dallas have already led to his disqualification in one clergy-abuse case, is embroiled in a fresh dispute over lawsuits alleging molestation by priests.
All the suits are in the court of state District Judge Anne Ashby, whom the diocese unsuccessfully accused of bias after it was judged liable for gross negligence in the case of suspended priest Rudolph "Rudy" Kos.
Now some of the diocese's co-defendants in upcoming trials - involving former priest Robert Peebles and suspended priest William Hughes - are making similar bias arguments in a bid to prevent Judge Ashby from hearing those cases.
Judge Ashby has declined to recuse herself, just as she did in the fight over post-trial motions in the Kos case. That again puts the matter before Judge McDowell, who presides over the judicial region that includes Dallas County. He declined to comment Monday.
The first time around, in the Kos case, Judge McDowell initially said he planned to hear the recusal motion against Judge Ashby. But he stepped aside after first revealing that he's a "cradle Catholic" who contributes money to his church and later acknowledging that he'd had a private conversation about the motion with a lawyer close to the diocese.
In stepping aside, Judge McDowell asked Texas Supreme Court Chief Justice Tom Phillips to assign a judge to hear the recusal motion. It went to visiting state District Judge Roger Towery, who kept Judge Ashby on the case.
In the Peebles and Hughes lawsuits, Judge McDowell told plaintiffs' attorney Sylvia Demarest that he planned to assign the recusal motion himself.
Ms. Demarest protested, filing a motion late last week to remove Judge McDowell and to let Justice Phillips make the call again.
"As you must know, the Dallas Diocese is the primary party in all of the above cases," she wrote the judge.
"If you are disqualified because of a financial interest from hearing the motion to recuse Judge Ashby in the Kos case, there is no material reason why you should not be disqualified in the above cases as well."
Among the co-defendants seeking to recuse Judge Ashby in the Peebles case is the Archdiocese for the Military Services, under whom Mr. Peebles served for a time as a chaplain. He is accused of molesting four plaintiffs, with most of the abuse allegedly occurring in the Dallas area and one attack occurring on a Georgia military base.
The archdiocese's Dallas attorney, John Palter, declined to comment Monday. In court papers, he argues much as the diocese did earlier - that Judge Ashby showed bias in remarks, made outside the jury's presence, about the case's "tragedy" and later, after the verdict, by hugging plaintiffs.
Ms. Demarest said the judge addressed her comments equally to plaintiffs and defendants and also hugged people from both sides.
Mr. Peebles, who became a lawyer after leaving the priesthood, is a defendant in the suit but has not filed a recusal motion. He is representing himself, though he has acknowledged in a deposition that he molested several Dallas-area altar boys.
Also seeking to disqualify Judge Ashby is Dr. Ray K. McNamara, a Dallas psychologist to whom the diocese long referred clients. He is a defendant in both the Peebles and Hughes cases.
Plaintiffs say that he improperly persuaded abuse victims he was treating not to prosecute, while also treating some priests and being paid by the diocese.
Dr. McNamara's attorney, Lancaster Smith Jr., complains in court filings not only about Judge Ashby's remarks and hugs but also about her rulings in the Kos trial involving his client. He argues that she unfairly restricted Dr. McNamara's right to counsel in that trial, during which he testified and evidence about the Peebles and Hughes cases was introduced.
Mr. Smith said he plans to challenge Ms. Demarest's motion to disqualify Judge McDowell, calling it "substantially and procedurally without merit." Judge McDowell may have acknowledged potential conflicts regarding the Catholic Diocese of Dallas, Mr. Smith said, but he "did not acknowledge anything about Dr. McNamara and the military "
Ms. Demarest accuses the diocese of conspiring with its co-defendants to conceal abuse - charges that all the defendants are fighting. Because of that relationship, she said, Judge McDowell should have already bowed out.
"Why did he not disqualify himself? " she asked. "Why are we still spending money on this? Why are we still spending time on this? "
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