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A Novel Tack by Cardinal

To keep accused priests' files secret, Mahony is asserting a type of confidentiality privilege that one scholar says 'just doesn't exist.'

March 14, 2004|William Lobdell and Jean Guccione | Times Staff Writers

Enmeshed in a high-stakes battle to maintain the secrecy of church documents involving priests accused of molesting children, Los Angeles Cardinal Roger M. Mahony has adopted a legal strategy more aggressive than that of any other bishop in the country, according to scholars and attorneys.

At the center of the fight are thousands of pages from priest personnel files that Mahony has succeeded for more than a year and a half in keeping from prosecutors, lawyers for victims and the public.

Officials at the Roman Catholic Archdiocese of Los Angeles concede that the files include evidence that Mahony and other church leaders improperly handled some cases involving abusive priests.

"We believe that our early decisions were correct at the time they were made but, as our understanding grew, we concluded that those early decisions had generally been too tolerant," said spokesman Tod Tamberg. "In retrospect, then, some of our early policies were mistakes."

Tamberg said that, overall, Mahony should be seen as a national leader in reforming the church's sexual abuse policies. But the cardinal's opponents say that, if all the files became public, they would hobble his leadership of the largest Roman Catholic diocese in the United States.

To keep the files secret, Mahony's legal team is pushing a novel argument in both criminal and civil courts -- a claim of what his chief lawyer, J. Michael Hennigan, has called a "formation privilege" between a bishop and his priests.

The archdiocese asserts that the privilege stems from a bishop's ecclesiastical duty to provide a lifetime of formative spiritual guidance to his priests. As claimed by the archdiocese, the privilege would require that sensitive communication between a bishop and his priests involving counseling -- including documents relating to sexual abuse of minors -- be kept confidential.

Any action by the state to breach that privilege would violate both state law, which shields communications between a priest and a penitent, and the state and federal constitutions' guarantee of religious freedom, the archdiocese's lawyers argue.

"I cannot and will not jeopardize those privileged communications," the cardinal wrote in a Feb. 28 letter to Los Angeles priests and other church leaders. The files could include items such as notes by the cardinal or church investigators on their conversations with victims, witnesses and accused priests; psychological evaluations of alleged abusers ordered by the church; letters about priests' conduct; and assessments by supervisors.

Using the privilege claim, Mahony's lawyers have effectively employed the secrecy of grand jury proceedings as a shield against public disclosure, not only of the disputed files, but of the church's legal arguments as well.

Some church lay leaders and canon law experts -- as well as victims' advocates and prosecutors -- have expressed reservations and, in some cases, outrage about the cardinal's stance.

Marci Hamilton, a law professor and church-state scholar who has advised lawyers suing the archdiocese, summed up her description of the formation privilege this way: "It just doesn't exist."

Norman Abrams, interim dean of the UCLA School of Law and a privilege expert, said he had never heard of a formation privilege.

Last month, Mahony's legal tactics were criticized by an independent Catholic national review board that issued a report on the sex scandal.

"This argument did little to enhance the reputation of the church in the United States for transparency and cooperation," the report stated. The document also advised bishops and others that "the church cannot and should not hide behind its lawyers or the law blindly and in all circumstances."

The report triggered a fresh round of criticism of Mahony, one of only four bishops it referred to by name as having harmed the church's moral standing during the scandal.

The priest abuse scandal won't go away "unless we have transparency and openness," said William Donohue, head of the Catholic League for Religious and Civil Rights, a conservative advocacy group based in New York. "I see a need for Cardinal Mahony to be more cooperative" and to stop fighting prosecutors.

Hennigan defended the archdiocese's legal tactics.

"There is no suggestion in the report that our positions are not principled or lack authority in law," he said, referring to the National Review Board's statement. The formation privilege is "close and sometimes identical to the priest-penitent privilege," Hennigan said.

In one case last year, he said, Ventura County Superior Court Judge Vincent James O'Neill Jr. ruled that Mahony had been correct in arguing that files of an allegedly abusive priest were protected by a privilege and did not have to be turned over to a grand jury in that county. O'Neill's ruling is sealed, because it involves a grand jury.

The review board's report was "enormously unfair ... and not well-informed" about the grand jury investigations the church faces, Hennigan said.

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