Saturday, November 22, 2003

Dueling lawyers just had enough

Church plea ends two-year feud

By Dan Horn
The Cincinnati Enquirer

Tom Miller

By the time they walked into court Nov. 13, Hamilton County prosecutors and lawyers for the Archdiocese of Cincinnati had spent the better part of two years attacking each other in letters, legal briefs and news conferences.

They had feuded at almost every opportunity over the prosecutors' investigation of clergy sexual abuse.

But as the lawyers stood together that day in Common Pleas Court, waiting for yet another legal battle to begin, many of them were thinking the same thing:

This has gone on long enough.

Tom Miller, one of the archdiocese's lawyers, pulled Prosecutor Mike Allen aside. It was time, he said, to stop arguing and start talking about a settlement.

"It's time for you to listen and for us to listen," Miller said.

Allen was receptive, saying he'd think about it.

That exchange was the beginning of the end of one of the most contentious legal battles in Hamilton County history. In the days that followed, teams of lawyers hunkered down in their cross-town offices for a long weekend of negotiating by phone and by fax.

Hamilton County prosecutors and lawyers for the Archdiocese of Cincinnati make a deal after nearly two years of fighting? Here's what each side got:
The only criminal conviction of a U.S. diocese for failing to report sexual abuse.
The creation of a $3 million compensation fund for victims.
No risk of losing the case in court because of fading memories, old evidence or the statute of limitations.
A comprehensive settlement that ends a long and embarrassing criminal investigation.
An opportunity to reach out to victims of abuse with a compensation fund that also encourages them to drop pending lawsuits against the church.
No risk of church officials being indicted on criminal charges.
Highlights of criminal cases since January 2002 involving U.S. Roman Catholic officials' handling of sexual misconduct allegations against clergy:
Cincinnati: On Thursday, the Archdiocese of Cincinnati, as a legal entity, admitted no wrongdoing but avoided possible indictment by pleading no contest Thursday to five misdemeanor charges of failing to report allegations of felony child abuse from 1978 to 1982. Common Pleas Judge Richard Niehaus found the archdiocese guilty and imposed a $10,000 fine.
Phoenix: In June, Bishop Thomas O'Brien admitted he sheltered abusive priests in a deal that carried immunity from indictment for obstruction of justice. He agreed to institute reforms and cede some authority to other church officials. (O'Brien later resigned after being charged separately in a fatal hit-and-run accident.)
Manchester, N.H.: In December 2002, the Manchester Diocese avoided criminal indictment when Bishop John McCormack acknowledged that if state prosecutors had gone to court, the diocese would likely have been convicted of misdemeanors for failing to protect children from offenders. Attorney General Philip McLaughlin said he confirmed molestation reports on more than 40 priests.
Massachusetts: A July report from state Attorney General Thomas Reilly and a grand jury denounced the mistreatment of possibly more than 1,000 children by 237 priests of the Boston Archdiocese since 1946. No criminal charges were filed because weak mandatory reporting laws were in effect.
New York: In February, a Suffolk County grand jury concluded the Rockville Centre Diocese repeatedly protected and transferred alleged abusers, but filed no indictments because the statute of limitations had expired. In 2002, a Westchester County grand jury accused the New York Archdiocese of "an orchestrated effort to protect abusing clergy" from investigation and urged toughened state laws.
When they had finished, the lawyers had produced the only deal of its kind in the nation to resolve a criminal investigation of clergy sexual abuse. The deal resulted in a criminal conviction of the archdiocese Thursday for failing to report sexual abuse from 1978 to 1982.

But getting the deal done wasn't easy.

The negotiations followed 20 months of fighting that tested the church, the community and countless victims of abuse who had suffered for years in silence.

After so much acrimony, after so many accusations, it was hard for the lawyers to imagine how they could reach a settlement that would satisfy everyone.

How could the church make a deal that protected it legally but accepted responsibility for past mistakes? How could prosecutors hold the archdiocese accountable, as they had promised to do, with a case based on decades-old evidence?

The two sides wouldn't have much time to come up with answers. A special grand jury was to convene Nov. 17 to begin hearing evidence about the archdiocese's handling of abuse cases. Church officials, possibly even Archbishop Daniel Pilarczyk, would be called to testify.

Everyone knew that if they were going to make a deal, they had to move fast. Time was running out.

A contentious history

Given their history, there was little reason for optimism.

The two sides had been at each other's throats since Allen launched his investigation in March 2002. The first few conversations were amicable, but as prosecutors demanded more church documents, archdiocese lawyers resisted.

The church claimed many of those documents were confidential communications between archdiocese officials and their lawyers.

When they refused to share those records in April 2002, the relationship turned ugly. "We were promised cooperation," Allen said angrily at a news conference. "What we got was the back of their hand."

Prosecutors accused the archdiocese of playing "hide-the-evidence," while church lawyers said prosecutors were distorting the facts.

Before long, the two sides stopped talking.

Lawyers who had once socialized, played golf together and worked in the same offices went months without speaking. The case had gotten personal.

"From that point forward, we had issues," recalled Mark VanderLaan, the archdiocese's lead attorney. "Both sides developed fairly fixed positions."

For the next year, the only regular communication was in the form of letters or legal briefs. And even those were often tinged with sarcasm or unflattering comments.

Sometimes the letters used polite legal terms to accuse the other side of lying.

Sometimes the terms were not so polite.

"It got contentious," Allen said Friday. "It became an exchange of letters that were less than cordial."

Things seemed to improve somewhat five months ago when Allen made Mark Piepmeier, a respected veteran prosecutor in his office, the point man for the archdiocese case.

The two sides started talking again. In September 2003, Allen and VanderLaan, who used to work in the same law firm together, bumped into each other at the birthday party of a mutual friend.

A photographer spotted them and asked them to pose for a photo. They both laughed about it and had a brief but friendly conversation.

Neither could remember the last time they'd talked.

It wasn't much, but it was a start.

The pressure mounts

By the time Miller suggested a settlement on Nov. 13, both sides had begun to warm up to the idea of a deal. A new sense of urgency took hold as the grand jury prepared to begin its work.

Church lawyers wanted to avoid the spectacle of archdiocese officials marching into the grand jury room to testify about possible criminal activity. And prosecutors had concerns about whether they could get a conviction, or even an indictment, based on evidence that dated back more than 20 years.

So they started talking about a deal. VanderLaan, Miller and their team met in Dinsmore & Shohl's Fifth Street offices, while Allen, Piepmeier and their team met in the prosecutor's Ninth Street offices.

They hit a snag right away when Allen insisted that any deal include a criminal conviction.

After promising to hold the archdiocese accountable for its failure to report abusive priests, Allen felt he couldn't accept anything less.

VanderLaan said no. "I personally did not feel it would be justified," he said.

He reconsidered, though, when prosecutors suggested an alternative that would not require an individual church official to plead. Instead, the archdiocese itself could enter the plea.

Because the plea would be no contest, the archdiocese could admit the facts of the case without admitting guilt. That idea was more palatable to VanderLaan.

"In the scheme of things," he said, "it became a way to reach closure."

And then the archdiocese shocked the prosecutors with another idea: Establishing a $3 million compensation fund administered by the church and open to all victims who are not suing the church.

Allen liked the idea. It gave the more than 70 abuse victims he had spoken to over the past 20 months a chance to get some acknowledgement - and financial relief - from the church.

Most of those victims were unable to sue for damages in court because the allegations were so old that the statute of limitations had expired.

"We thought it was important that something be done on behalf of victims," Allen said.

A deal gets done

By Sunday morning, the deal was taking shape. The lawyers had spent 20 hours over two days working out the details, drafting the settlement with pens and legal pads.

VanderLaan called the archbishop on his cell phone to tell him they were close.

Pilarczyk was on his way to preside at a confirmation in Troy, Ohio. He said he was ready to make the deal official.

Four days later, on Thursday, the archbishop and the prosecutor signed their names to the settlement. Pilarczyk agreed to enter the plea himself.

"A few years ago, I never would have thought that it would be necessary for a bishop to be making apologies like these," Pilarczyk said later that day. "But it is necessary."

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