Do Lawyers Defending The Catholic Church Live On Another Planet?

As I’ve mentioned before, I think the motivations that compel lawyers to deny reality while defending some clients are varied and complex, but it cannot be denied that, in many cases, the defense is premised not on providing explanations or raising genuine doubts, but on burying the truth.

Lest we forget what brought us to the ongoing criminal trial of Monsignor William Lynn, here is how the grand jury report against him begins:

In September 2003, a grand jury of local citizens released a report detailing a sad history of sexual abuse by priests of the Archdiocese of Philadelphia. That abuse was known, tolerated, and hidden by high church officials, up to and including the Cardinal himself. The previous grand jury was frustrated that it could not charge either the abusers or their protectors in the church, because the successful cover-up of the abuse resulted in the expiration of the statute of limitations. Now, measures taken in response to the previous report have led to new information about more recent abuse, which this grand jury was empaneled to investigate. The fact that we received that information, and from the church itself, is some sign of progress; and this time there will be charges.

The present grand jury, however, is frustrated to report that much has not changed. The rapist priests we accuse were well known to the Secretary of Clergy, but he cloaked their conduct and put them in place to do it again. The procedures implemented by the Archdiocese to help victims are in fact designed to help the abusers, and the Archdiocese itself. Worst of all, apparent abusers – dozens of them, we believe – remain on duty in the Archdiocese, today, with open access to new young prey.

And so we come to the latest, but not the last, controversy in the criminal case, this time over the remarks made by presiding Common Pleas Court Judge M. Teresa Sarmina. A week ago, before the trial began, the lawyers for the Catholic Church wanted to ask potential jurors, “Do you believe child sexual abuse is a widespread problem in the Catholic Church?” Judge Sarmina struck the question, answering “Anybody that doesn’t think there is widespread sexual abuse within the Catholic Church is living on another planet.”

Imagine that: a judge saying what they really think about an issue relating to a case. There is a long-running strand of American politics that maintains judges should be as cold, inhuman, and calculating as possible, with even the Chief Justice of the United States falsely claiming that his job involves nothing more than calling balls and strikes like an umpire. Anyone who has spent any significant time around the justice system, however, can tell you that the last thing you want is a grocery clerk deciding your fate by thumbing through statutes and court opinions to find some sentence or paragraph somewhere that, they claim, already decided your fate before you walked in the door. Law involves living, breathing people in difficult and complicated situations that rarely line up with simple rules of thumb. When we deny that judges have their own thoughts and feelings, we don’t make those thoughts and feelings go away, we just put them where we can’t see them.

The lawyers for the Archdiocese of Philadelphia have claimed that Judge Sarmina’s remark shows that Judge Sarmina is too biased against the Catholic Church to oversee the case anymore, and have demanded her recusal. We could spend all day discussing whether or not such a comment actually reveals the sort of bias that might preclude a judge from fairly overseeing a case. The standard in Pennsylvania is quite muddy: a judge should recuse themselves where “his or her continued involvement in the case creates an appearance of impropriety and/or would tend to undermine public confidence in the judiciary.” Commonwealth v. Abu-Jamal, 553 Pa. 485, 720 A.2d 79, 89 (1998).

But we don’t need to go through that.

In support of their argument, the Catholic Church’s lawyers cited, apparently without any sense of shame or irony, “two dozen comments criticizing the judge, posted mostly by anonymous readers on Philly.com,” and a press release issued by the Catholic League, which is a public relations front for the Catholic Church. The comments to Philly.com have long been known as the cesspool of the Philadelphia online world; as Philebrity says, “two dozen critical comments on Philly.com counts as a noteworthy public outcry now? So this story about Platt Bridge construction is well on its way to noteworthy public outcry, while this article on amounts of snow fall has at least two critical comments.”

To see if sexual abuse is “widespread” within the Catholic Church, why not consult a source even the Catholic Church’s own lawyers would find credible: the report by John Jay College  researchers commissioned by the United States Conference of Catholic Bishops, “The Causes and Context of Sexual Abuse of Minors by Catholic Priests in the United States, 1950-2010.” How widespread is the child abuse?

The results of the Nature and Scope study indicated that the total number of priests with allegations from 1950 through 2002 was 4,392 out of a total of 109,694 priests who served in ministry at some point during that time. The number of accused priests is equivalent to 4 percent of priests in ministry. The majority of priests with allegations (69 percent) were diocesan priests; 4.27 percent of diocesan priests and 2.7 percent of religious priests had allegations of abuse. The number of individual reports of sexual abuse by priests made known to dioceses by early 2003 was 10,667.

Remember, these numbers come from the Catholic Church itself, as tabulated by a study they commissioned, a study so biased in favor of the church that it defined “prepubescent” as 10 years and younger — rather than 13 years and younger, as defined by the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders — to avoid properly classifying most of those allegations of childhood sexual abuse as involving prepubescent children.

I’d call over 10,000 reports of sexual abuse against over 4,000 different priests to be “widespread,” not least because the numbers are certainly far, far higher. Bishop-Accountability.org says the U.S. Conference of Catholic Bishops’ own numbers actually put the number of clerics accused closer to 6,000, and that the number of victims is closer to 16,000. For every victim who has come forward, how many remain silent? Two? Ten? A hundred?

Coincidentally, on the same day, Philadelphia Weekly published a story explaining why efforts to reform Pennsylvania’s statute of limitations on childhood sexual abuse (discussed in more detail in my post about the sexual abuse at Penn State) have stalled out: because the Catholic Conference has fought tooth and nail to prevent it. And in that battle they have trotted out the same bias charges:

Charges of anti-Catholic prejudice were key to the Denver strategy, which reportedly included hiring a boutique PR firm, writing and distributing sermons for pastors to read from the pulpit and asking churchgoers to fill out postcards with messages on them to be mailed to legislators.

Gwyn Green was the sponsor of legislation that would have lifted the statute of limitation and created a window. “The Archdiocese fought it quite a bit,” says Green, 73, on the phone from her home in Golden, Colorado. “Actually the Catholic Conference, and then it seems that they reached the insurance companies who said to the members of the legislature, ‘If you pass this legislation, we will no longer insure your public schools’ so I lost the votes to pass that.”

The main message went roughly like this: Window legislation is anti-Catholic bias unless a companion bill opens a window on possible lawsuits against public schools.

“The information I got was that the Catholic Conference brought in national lobbyists and as I understand it, a great deal of money was being spent to defeat the bill, which they were successful at,” says Green. “Every week in the Denver Catholic Register, Joan Fitz-Gerald, the president of the Senate and I were vilified … They smeared our reputation and with many people it ruined our reputations, and that continues to this day.”

Green says she and Sen. Fitz-Gerald were called names. “Both of us are very Catholic and accused of being anti-Catholic, of trying to destroy the church, all that nonsense.”

And so this same anti-Catholic bias claim is now being thrown at Judge Sarmina, with the Church’s lawyers claiming  ”harbors a firm predisposed opinion against the Catholic Church and its representatives,” despite her educational pedigree — St. Mary’s for undergraduate, Georgetown for law — and her doing nothing more than stating a simple, indisputable fact.

The great tragedy here is that, while the Catholic Church uses its considerable influence to evade responsibility for its sins, child abuse remains a particular problem in Pennsylvania, as noted by the Philadelphia Weekly story:

According to the Department of Health and Human Services 2010 Child Maltreatment Report, Pennsylvania is a statistical outlier in the investigation and determination of child abuse. We investigate child abuse 8.3 per 1,000 children versus 40.3 per 1,000 children nationally, and then we determine a child is a victim of child abuse 1.4 per 1,000 children versus 9.3 per 1,000 nationally.

Sexual abuse has been “widespread” in the Catholic Church and “widespread” in the Commonwealth of Pennsylvania. Anyone who claims otherwise is a liar or a fool.

 

Tweet Like Email LinkedIn
  • Guest

    To answer your question, No. Those lawyers do not live on another planet. They lie because they get paid to do it. Those with something resembling a conscience probably deal with their guilt in Confession, if they happen to be Catholic, but that doesn’t serve the interests of justice.

  • Guest

    I don’t blame the defense lawyers for trying to get rid of her. She’s expressed an opinion on the matter, and she may have done so in front of the jury pool. If so, that could taint them. Flame bait on Philly.com aside, statements from the bench favoring on side shouldn’t be made, regardless of how strong the prosecution’s evidence may be. We have trials and evidence precisely to determine the strength of the prosecutor’s case, and judges shouldn’t make comments like this before any evidence is heard, precisely because they’re supposed to be neutral arbiters in the matter and they are not the fact finder.

    Moreover, the question to the jurors seems proper. The juror’s answer, one way or the other, will demonstrate to each side where his or her biases lie. You may think that child sexual abuse was widespread in the Catholic Church, and you’ve laid out a persuasive case for that. Wouldn’t the prosecutors want to know if a potential juror disagreed with the seemingly common sense proposition set forth in the stricken question?

    As for the answer to the stricken the question, I’m agnostic. How do the Catholic Church figures compare to other institutions? Higher or lower? Is a few percent of priests widespread? I really don’t know. As someone who’s observed the media attention to the scandal, the problem seems pervasive, but media reports aren’t the best way to determine the extent of a problem. I’d prefer social science give me an answer to that question. I’d hope that a judge would come at questions like this from the same perspective.

    You seem to think that judges who don’t blurt out prejudicial comments like this are cold or ignoring the obvious truth. I’d say they’re doing their job and withholding judgment until the proper time. I think that’s what most people want out of judges and our courts.

    • http://www.litigationandtrial.com/ Max Kennerly

      Initially, I agree with you about the question: I’d want to know the answer, whether I was on the prosecution or the defense. But I can see where Judge Sarmina is coming from: the question is not particularly informative one way or another, not least because it relies on a value judgment – “widespread” – that may differ from the questioning lawyer to the potential juror. It’s better to just get to the point, and start asking them about their thoughts relating to the issues in the case. The Catholic Church as a whole is not actually on trial.

      The Church’s lawyers are trying to create as much of a record for appeal as they possibly can, and so it’s unsurprising to me that they’re trying to spin every last comment or ruling into the worst injustice ever experienced by a criminal defendant. The problem for them, though, is that they seem to have spent their ammunition a bit too quickly: if I was going to claim there was a public perception of bias, I’d wait until I had a lot more evidence of that than:

      (a) a simple statement of undisputable fact outside of the presence of the jury, not much different from a judge saying in a pre-trial hearing that drug companies exist to make money
      (b) anonymous comments on the internet from a notoriously ignorant audience (click over to the story about a wrongful death suit against the Philadelphia Police Department and the very first comment refers to blacks as “animals”), and
      (c) comments from one of the movant’s PR flacks.

      On the more global issue, there’s of course nothing wrong with a judge
      refraining from commenting on anything relating to the case. My concern
      is more with the defense lawyers’ claim that, if a judge makes any sort
      of remark relating to the case, that itself is evidence of bias or
      prejudice. I don’t like pretending that judges never have thoughts or
      feelings about the cases in front of them; of course they do. I’d rather
      there be some wiggle room for judges who are candid about their
      thoughts, not least because it gives us all a better sense of how the
      judge thinks and because it helps inform the parties as to the judge’s
      natural inclinations, thereby allowing them to tailor their advocacy to
      the judge.

      ________________________________

      • Guest

        I agree with you that moving to disqualify a judge on something like this, or even something much worse, is highly unlikely to succeed at any level, and certainly not with the trial judge. You’re likely to just piss her off by bringing the motion. Maybe the defense lawyers have to make such a motion or waive it on appeal. Not being a criminal defense lawyer, I really don’t know.

        I think it’s fine for judges to have thoughts about the case. I think it’s fine for them to share those thoughts under the appropriate circumstances (like when ruling on evidentiary matters or pre-trial motions). I don’t think her decision on whether to allow the jury pool to hear and answer this particular question was an appropriate time for her to share her view of the answer to the question. Obviously, the Catholic Church writ large is not on trial, but the question goes to an important bias, regardless of how it’s answered. Maybe if the defense had moved to strike a witness for answering the question in the positive, she could have said, “I believe the answer simply demonstrates that Juror N is familiar with this widely publicized scandal from media reports, and his understanding has some apparent basis in fact. Motion denied.”

      • Anonymous

        My thought was that were I in the jury pool I would be unable to answer the question, due to the vagueness of “widespread”. If required to answer yes or no, my answer would essentially (and perhaps literally) be a coin toss.

  • Meatballbuddy

    i am a carpenter not an attorney; but to hear an officer of the court suggest that a judge should bring human bias to a trial further diminishes my trust and belief in the american legal system. perhaps that attorney should reconsider career options,. he seems morally suited to prostitution

    • http://www.litigationandtrial.com/ Max Kennerly

      If that’s what you think my post said, you should re-read it.

  • http://twitter.com/MillerAndZois Miller & Zois, LLC

    I see the downside of the judge’s comment. What exactly was the upside? Zero. He just felt like blurting out an opinion.

    Guest’s point is good. Some awful things have happened in the Catholic church in these sex scandals. It is beyond awful. This we know. But is it endemic to the Church itself? What is the molestation rate for similarly situated Baptists? (I have no clue.)

    The unspoken implication here is that because priests can’t marry, they are more likely to so these things? Is is empirically true? Again, I don’t know. But that judge’s comment bypasses all of these kinds of questions and just renders tacit judgment before a trial begins.

    This is a jury trial. Let’s save the preconceived notions to the extent possible.

    • http://www.litigationandtrial.com/ Max Kennerly

      Much like how I consider a judge who “has no opinion” on what abortion rights are protected under the Constitution to be flatly unqualified to serve on the Supreme Court, any judge presiding over a clergy abuse trial who claims to have no view whatsoever on abuse in the Catholic Church is either lying or is so blissfully unaware of reality as to be incompetent.

      It was a casual, accurate remark solely to the attorneys as their reviewed the questions for voir dire. Recusal is not a game by which lawyers can derail trials as they are about to begin, it is a means for ensuring the reality and the appearance of impartiality. The only people claiming that they suddenly have come to doubt Judge Sarmina’s impartiality as the basis of that remark are those who have been looking for any reason to get rid of her. If there were any totally disinterested observers to these proceedings – which I doubt there are in reality – none of them would suddenly come to believe that she should be replaced by a hypothetically more neutral judge.

      ________________________________