Law Set to Face Grand Jury
Reilly May Issue Report on Abuses
By Stephen Kurkjian
February 24, 2003
Once America's most influential Catholic prelate, soon to be a chaplain at a tiny Maryland convent, Cardinal Bernard F. Law returns to Boston tomorrow for questioning by a criminal grand jury that is facing a historic decision on whether to indict him or other Boston bishops for their role in the clergy abuse scandal.
The grand jury's investigation, which is coming to a close, has become the most intense and closely watched criminal probe of church leadership in the country.
But nearly three months after Attorney General Thomas F. Reilly accused the Archdiocese of Boston of having engaged in a blatant coverup that resulted in "countless" children being harmed, it remains far from clear whether indictments, of individual church leaders or of the archdiocese as an institution, will result.
Officials and private lawyers involved in the probe say Law and others may be spared indictment because before 2002, Massachusetts lacked specific criminal laws prohibiting the endangerment of children and mandating that clergy report allegations of sexual abuse to civil authorities.
A more likely scenario, they said, would be either the grand jury or Reilly himself issuing a report summarizing the probe's conclusions about how the church hierarchy failed to prevent clergy abuses. Such a report would also make recommendations for change in laws and church procedures.
Law and the Rev. Alfred C. Hughes, his top deputy in the early 1990s and now the archbishop of New Orleans, are the last of seven Boston bishops to appear before the grand jury; Hughes will testify Wednesday. The grand jury has been meeting in a conference room inside the attorney general's office -- an unusual arrangement designed to minimize publicity.
Law will face a different sort of interrogation than he has in his civil deposition appearances in church abuse litigation. His interrogators will be prosecutors drawing on the investigative work of between five and 20 assistants.
The questioning will be spearheaded by Assistant Attorney Generals Philip J. McGovern and Michele Leigh Adelman, described by former colleagues as a "terrific investigative prosecutor" who won convictions in securities fraud and narcotics trafficking cases when she worked with the US attorney's office in Brooklyn, N.Y.
Reilly, meanwhile, has been receiving frequent briefings on the progress of the investigation, officials said, and had been interviewing victims himself. Both Reilly and Ann Donlan, his spokeswoman, declined comment. "We don't talk about ongoing investigations,' Donlan said Friday.
Several individuals who know him or have spoken with him recently say Reilly is outraged by the handling of the abuse cases by Law and his deputies, particularly the failure to report to authorities when the archdiocese was told by hundreds of victims during the 1980s and 1990s that they had been molested by scores of Boston-area priests.
"Tom Reilly has long been an advocate for child protection laws, and he's not going to let something like this just go by the books," said Middlesex County District Attorney Martha Coakley.
But Reilly is said to be concerned that the lack of governing criminal laws, of the sort that have facilitated investigations in other states, could render him unable to bring criminal charges and allow public pressure on the church to ebb.
As the grand jury continues to take testimony, Reilly's deputies are studying alternative statutes to determine if a criminal case can be brought. One private lawyer, who has briefed Reilly's office, said he believes that the prosecutors are considering the possibility of charging one or more of the bishops with perjury.
Other lawyers, most notably Wendy Murphy, a former prosecutor who now represents abuse victims, believe that a recent decision by the Supreme Judicial Court expanding the legal concept of reckless conduct could make Law and others vulnerable on an indictment as an accessory to child rape. Others contend that church leaders could face prosecution as accessories after the fact to the commission of a felony. But that statute's requirement that the bishops intended further abuse to occur when they shifted the priests from parish to parish may block that course.
The archdiocese, as an institution, may also be indicted under a doctrine of liability often used to charge companies that fail to stop wrongdoing by their employees. Under the "vicarious liability" doctrine, the church could perhaps be indicted and held liable for heavy fines, if it is found to have failed to act reasonably to prevent further abuse by priests whom bishops knew to have molested children.
But lawyers and Reilly's advisers say they believe that the attorney general is unlikely to want to depend on a creative interpretation of a criminal law to base an indictment against Law or his bishops. Although prosecutors in other jurisdictions have opened similar criminal investigations into the handling of the sexual abuse cases, none has resulted in an indictment.
"The investigation in Boston is the most intensive and mature of any of the dozen or so across the country that is looking at issues of supervision," said Jeffrey R. Anderson, a Minnesota lawyer who represents many victims of clergy sexual abuse.
"It's closely watched because they [the grand jury] started earlier, have gotten more church documents, and subpoenaed more bishops than any other place that I know of," Anderson said.
Inevitably, the decision that Reilly and his assistants make on how to proceed will be measured by the recent highly publicized outcomes of separate investigations in New Hampshire and on Long Island, N.Y. In those jurisdictions, prosecutors looked at how the dioceses of Manchester and Rockville Centre had dealt with sexual abuse allegations against their local priests.
In December, Manchester Bishop John B. McCormack signed an agreement with the New Hampshire attorney general's office that stated prosecutors had uncovered sufficient evidence to prove in court that the diocese had violated the state's criminal law against the endangerment of children.
The case remains the only instance where a Catholic diocese has acknowledged criminal wrongdoing in the way it had dealt with sexual abuse complaints against priests. In addition, the Manchester Diocese agreed to allow the New Hampshire attorney general's office to conduct an annual audit of its abuse prevention practices over the next five years.
That sort of concession would probably appeal to Reilly who, according to lawyers who know him well, takes a broad view of his role as the "public's protector" for the state as well as its chief law enforcement officer.
"Tom Reilly is interested in getting to the bottom of this scandal and getting that information out to the public," said Robert A. Sherman, a private lawyer who worked on Reilly's transition team and represents several victims of clergy sexual abuse.
"He may not have the tools available to bring an indictment," Sherman said. "But if his long-term goal is to ensure the protection of children, he will be better able to achieve that with a report that cites chapter and verse how this scandal took place and recommendations for reform, than with an indictment."
That was the outcome of a county grand jury in New York that investigated the handling of sexual abuse allegations against priests assigned to the Rockville Centre Diocese on Long Island for nine months. It issued no indictments, District Attorney Thomas J. Spota said earlier this month, because New York, like Massachusetts, had no law requiring the clergy report allegations of sexual abuse of children to the state.
But the grand jury issued a 180-page report, recommending legislative reforms and sharply criticizing the diocese for being "incapable of handling issues relating to the sexual abuse of children."
James E. Post, the president of Voice of the Faithful, a lay group formed last year, said he is hoping that Reilly's probe concludes with similarly strong language on the failings of the Boston Archdiocese to supervise abusive priests.
"What he [Reilly] says will be the most comprehensive, authoritative account of what happened and who was responsible," Post said. "We need that to make sure that nothing like this ever happens again, and also to allow the healing and reconciliation to begin."
Stephen Kurkjian can be reached at firstname.lastname@example.org.
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