Victims Found a Voice
Attorney Built Case As He Built Plantiffs' Trust
By Andrew Wolfson email@example.com
The Courier-Journal [Louisville KY]
Downloaded June 15, 2003
It began with one lawyer, one case and one client who had no evidence but his own memories and nightmares - and no power, other than his willingness to speak out by name.
It seemed like a mismatch, Michael Turner vs. the Archdiocese of Louisville, a powerful institution whose leader, Archbishop Thomas C. Kelly, had just been lauded as "witty, holy and efficient" as he marked his 20th anniversary at the helm of a 200,000-member flock.
The archdiocese had been so fair and honest and its priests "almost universally above reproach , " Kelly said in February 2002 , that it had largely avoided the sex-abuse scandal that had rocked the church in Boston and other dioceses around the United States.
Last week, Kelly agreed to turn over $25.7 million to Turner and 242 other plaintiffs who accused 38 priests, brothers, teachers and other church employees of sexual abuse - and the archdiocese, for five decades of covering it up.
How, just 14 months after the first lone accuser came forward, was the archdiocese forced to agree to surrender more than half its unrestricted liquid assets in the sec ond- largest church sex -abuse settlement in U.S. history?
The archdiocese says the case was resolved so quickly in part because it wanted to do right by the victims and avoid a protracted legal fight. "It became very apparent that this would be a lengthy and enormously painful process for everyone, " said Brian Reynolds, the archdiocese's chancellor and chief administrative officer, "and that was the prime mover. "
Key players in the case and experts outside it cite many factors, starting with the bold decision of Turner and other early plaintiffs to file their lawsuits under their real names, which in turn gave others the resolve to come forward.
"The credit goes to the courage of the survivors who were willing to break their silence , " said David Clohessy, national director of the Survivors Network for those Abused by Priests. Louisville was the nation's only jurisdiction in which every plaintiff sued by name, rather than as John or Jane Doe or by their initials, Clohessy said.
Then there was their lead counsel, William McMurry, who used the media to find more plaintiffs until he had so many that the sheer num ber - he represented 213 of the total - gave him leverage and power.
"He valiantly rode in on his white horse and gave victims the message - through the media - that you are not alone, that it is not your fault, " said Minnesota lawyer Jeff rey Anderson , who has represented plaintiffs in more than 700 church sex abuse cases. "That message being so widely disseminated is what turned the tide. "
By listening to plaintiffs, spending hours each night returning their phone calls and e-mail messages, McMurry was able to win and maintain the trust of hundreds of wounded, skeptical, mistrustful men and women. He kept them so united that only one jumped ship when it came time this month to mediate a deal with the archdiocese.
"He took care of us, he found us therapists, he did so much more than a normal lawyer would do, " Turner said. "He made us one. "
Some lawyers who were not involved in the case say McMurry - constantly working the media - made it impossible for the archdiocese to get a fair trial, if it had come to that. "We would like for legal proceedings to establish the truth - not what a lawyer says or what a news reporter says a lawyer says, " said A. Thomas Johnson, a local Catholic and a trial lawyer.
But others note that trials were years away, and they hail McMurry for risking everything on a gargantuan case that threatened many times to consume him.
"He bet his whole practice on this, " said litigator Sheryl Snyder, a former Kentucky Bar Association president. "If he loses, his entire career goes down in flames. "
Turning to the media
It began on Sunday, April 14, 2002, when Turner read in The Courier-Journal about the Rev. Louis E. Miller, who had been forced to retire because of allegations of sexual abuse decades earlier.
Turner had not forgotten the sight and smell of the rectory basement of St. Aloysius parish, where he said Miller had molested him. But until he read the story, he never thought there could be others. Five days later, after having been referred to McMurry by another lawyer who knew he'd handled a prior sex- abuse case, Turner filed a lawsuit.
"I told him that without the support of many other victims, it would be very difficult to win his case, " McMurry said in an interview. "We didn't know if there were others. "
When Turner talked openly about his suit with reporters, "it softened the community of victims, " McMurry said. Six days after Turner's complaint was filed, McMurry filed two more, including one for Kitti Marie Smith, who told reporters how Miller had molested her when , as an 11-year-old, she went to light candles in the sanctuary at St. Aloysius in memory of her late father.
Within three weeks of that filing, six priests had been accused in 32 lawsuits filed by doctors, accountants and busi nessmen - including the first who alleged that Kelly had concealed misconduct and reneged on a pledge to keep a pedophile priest away from children.
"The most important strategic decision I made was encouraging victims to speak to the media, to lend their credibility to other victims who had yet to come forward, " McMurry said. "Unless the community of victims was saturated with information to let them know they weren't alone, they wouldn't have come forward. And we could not have completed the puzzle and uncovered the awful secret the archdiocese had kept for 50 years. "
McMurry filed suits in batches, each revealing new disclosures about what he described as the church's "geographic solution" - how it shuffled priests from parish to parish as they were accused of molesting children.
As each set of complaints was filed, he provided copies to reporters, and he fed them depositions and other documents before they were filed in court.
"Bill realized that his witnesses were all out there reading the paper and watching TV news - and that would be the only way to find them, " said Ann Oldfather, a veteran trial lawyer whom McMurry later invited to join the case. "He proved to be 100 percent correct. You could look at Father Miller's personnel file all day and not find any of those people. "
Said Reynolds: "There is no question that Mr. McMurry communicated with the broader community and his clients through the media and kept the story in front of everyone, and that was his prerogative. "
The archdiocese , meanwhile, often elected not to comment, which Reynolds said resulted in "some stories that were less than fully descriptive of the whole case. "
In a move it later acknowledged backfired, t he church also initially sought to seal the files in every case under an obscure law that appeared to require abuse lawsuits to be filed anonymously.
After Jefferson Circuit Judge James Shake held that the statute wasn't applicable and was probably unconstitutional, the archdiocese elected not to appeal . "We have heard clearly from the Catholic people and from the community about the importance of openness, " Reynolds said at the time.
McMurry and others described it as a turning point.
"The community saw this as the church's last-ditch effort to keep the facts a secret," he said. "If they had won that motion, perhaps they could have contained the scandal. "
Instead, in less than two months, the number of complaints had mushroomed to 100, and McMurry was spinning out more suits nearly every day: One boy allegedly molested by a chaplain as he visited his dying father in the hospital ; another allegedly paid $15 each time for his silence.
With each lawsuit, more victims came forth, McMurry said. And each time a priest was suspended or resigned, McMurry said, it showed victims they could bring about change. "It gave them a sense of power where previously they had none. "
The growing numbers, McMurry believed, would make the plaintiffs all but impossible to impeach.
But eventually, it was too much too handle alone, he said, especially when the archdiocese demanded answers to more than 100 questions about each of his clients.
Needing three times the space, he was forced to move to another office and expand his staff from one eventually to eight. In August, he also was forced to find a new place to live, when his second wife filed for a divorce that was granted three months later.
"It has been a very difficult time personally for me for the past 14 months, " he said.
Many times, he said, he found himself dreading he would wind up like the protagonist in his favorite book, "A Civil Action," in which a real-life lawyer very much like himself falls into state of financial and emotional ruin as he tackles two giant corporations he accuses of fouling the drinking water in an industrial Boston suburb , afflicting his clients with leukemia.
Dealing with his own clients' emotional needs also took a toll, McMurry said, noting that his empathy went beyond lawyer to client. Growing up in Paducah, he said, his sister was a victim of childhood sexual abuse "at the hands of a trusting neighbor who attended church each Wednesday and Sunday and who we looked up to and respected. "
In the church cases, he said, "The victims had lost their ability to trust people. They needed a lot of listening, a lot of compassion that went beyond being a lawyer. They needed emotional support on a daily basis."
Eventually, after searching two months for help, McMurry found it in Oldfather and Doug Morris, partners in a small but respected firm for which McMurry had once worked.
"Bill realized this case would take a lot of attorney power, " said Oldfather, who made her name as a divorce attorney for the rich. And, she said of the church's trial lawyer, "Ed Stopher knew our capabilities. "
Because the statute of limitations had long expired for suing priests individually as defendants, the plaintiffs had to prove the archdiocese and its representatives knew about abuse and concealed it - which would eliminate the time limit on its liability.
Building their case for trial in depositions, the plaintiffs' lawyers' grilled 25 priests and church officials, some so elderly that the lawyers raced to interview them before the y died.
In the process, they say, they unearthed several smoking guns.
There was Monsignor Alfred Horrigan, 87, the retired president of what is now Bellarmine University, who admitted that when the parents of 7-year-old Joetta Stone Blair reported to him in 1963 that she had been molested by a teacher, the Rev. Kevin Cole, he did nothing after Cole assured him he was seeing a psychiatrist.
There was the Rev. Vincent Schweizer, the pastor of St. Rita Parish , who admitted in a deposition that when the father of a boy abused by the Rev. Daniel C. Clark complained about it, Schweizer never told the archdiocese or warned other teachers to keep an eye on Clark , as he continued to work in the parish. "I'm not going to be the middleman, " Schweizer said he told the parent.
There was the Rev. John W. Hanrahan, the archdiocese's chancellor from 1966 to 1982, who admitted that he did nothing when a priest told him he had molested several boys, and that when a parent called to say the Rev. Edwin J. Scherzer may have abused his son, told him, "I think you ought to approach that priest and talk to him about it. "
There was Miller, named in 94 suits and sentenced last month to 20 years in prison for abusing 21 children in Jefferson County, who testified that three archbishops knew of his sexual abuse but kept him in the priesthood; who said that after he confessed his pedophilia to then-Archbishop John Floersh and said he wasn't worthy of remaining a priest, Floersh told him: "Father, you will always be a good priest. "
And there were the memos from 1983, which showed how Kelly allowed the Rev. Thomas Creagh to remain at St. Albert the Great Parish despite knowing he had molested Gregory C. Hall because Creagh was performing an "excellent pastoral ministry, " and public disclosure of the allegations could "destroy his ministry and harm the parish greatly. "
McMurry said the disclosures showed the archdiocese acted worse than any corporate defendant. "In no other industry would such sexual abuse have been tolerated, " he said. And he insists his indignation went beyond material for sound bites.
"There is nothing more profoundly felt than the suffering I have witnessed in these cases, " he said. "I was horrified to see that a church - in the name of God - could have turned its back on children and put them in harm's way. It was beyond the bounds of decency. "
Church airs its side
The church disputed the significance of some of the disclosures.
For instance, Reynolds said, Hanrahan told the parent who called with the allegation about Scherzer to talk to the priest about it because the parent wouldn't give his name.
Kelly himself said recently that when he responded to the revelations about Creagh, he thought it was an isolated incident and that Creagh did not pose a danger to anyone. "With the advantage of 20 years of knowledge about childhood sexual abuse, " Kelly said, "I would not make this decision again. "
Reynolds said it was the sheer number of cases - and the years it would take to try them - that brought the archdiocese to the bargaining table.
But there was also the financial risk. "There was no way to anticipate the money side of it, " Kelly said in an interview last week.
The archdiocese thought that there was a good chance it might prevail on statute-of-limitations grounds , but that that would be a hollow victory, Reynolds said in an interview after the settlement, because so many people had been hurt.
"Winning the legal argument, " Reynolds said, "would not have removed the fact of the abuse. "
Ordered by Shake to try mediation, the plaintiffs also had good reason to shoot for a settlement, McMurry said. "There were enormous hurdles to getting to trial, and keeping a verdict, if we won one . "
Narrowing the chasm
Yet when the two sides sat down for the first time June 3 in downtown Louisville's Jefferson Club with mediator Nicholas Politan, a plain-talking former federal judge from New Jersey, they were still far apart - or at least acting that way.
In interviews later, neither side would reveal its opening offer, and Politan declined to comment. But McMurry said the plaintiffs' initial demand was a sum "in nine figures " - hundreds of millions of dollars.
"We asked for parishes, " he said.
Politan told the church's lawyers that the plaintiffs were willing to "plow down buildings, " Reynolds recalled.
"He said our demand was stratospheric and their offer was subterranean, " McMurry said. They initially were so far apart, he said, that Politan wouldn't share each side's figure with the other side for fear they'd be so offended they would walk out. In a four-hour presentation, the plaintiffs presented video snippets from their depositions, including evidence, such as Hanrahan's statements, that they said would merit punitive damages, for grossly negligent conduct, if the cases went to trial, Oldfather said.
The archdiocese responded with a multihour presentation focusing on eight legal reasons why the plaintiffs would not get to trial or protect a verdict on appeal, Morris said. He also said the archdiocese's lawyer, Stopher, "belittled " the damages claimed in two suits, "suggesting that the others also had problems. "
Stopher referred all questions about the case to Reynolds, who disputed Morris' characterization, although he said the church presented portions of the depositions taken of 41 plaintiffs to show "factual questions about some of the claims. "
Both sides, however, agreed in interviews that the church didn't contest the essence of a single plaintiff's allegation, even those who were the sole accuser of a priest.
To reduce tensions and get the parties to consider issues from different points of view, Politan regaled both sides with stories about his own cases, Reynolds said.
By the morning of the fifth day of mediation, the two sides were divided by only a few million dollars, but neither side was budging. Morris and Oldfather said they feared the talks would collapse.
"We had to receive an amount of money that would been seen by the community as an admission of the archdiocese's responsibility for what happened to 243 victims of childhood sexual abuse, " McMurry said.
The archdiocese's bottom line, Reynolds said, was "to have enough dollars left to continue our mission. We would not negotiate away any buildings or savings. "
At 3:30 p.m., the parties came together on money. But then the plaintiffs handed the church a list of 20 "noneconomic demands, " including the resignation of Kelly, Reynolds said.
That was rejected.
The plaintiffs also asked the archdiocese to install a plaque at the Cathedral of the Assumption bearing the victims ' names, both sides said. The church declined.
"We have every intention of reaching out to these men and women after their cases are settled to find a way to honor their experience, " Reynolds said. "I wasn't prepared to discuss what form that would take. "
Ultimately, the archdiocese acceded to only one of the demands, agreeing in writing to never again refer to the plaintiffs as "alleged victims. "
The deal was done.
As announced later that night, the plaintiffs will divide $25.7 million, after paying their lawyers about $10 million - the 40 percent contingent share that most agreed upon up front.
McMurry and the Oldfather & Morris firm will split their fee equally. For serving as lead counsel in negotiations, they will also get a portion of the fee earned by the dozen lawyers who represented the other 30 plaintiffs.
The court must still approve the deal, and the amount each lawyer gets will depend on how much each client recover s after specific damages are set by a court-appointed master.
A definition of triumph
So was the settlement a victory for the plaintiffs, who on average will collect about $105,000, before paying their attorney?
McMurry said only his clients can decide.
"The victims have expressed a great deal of joy that their dignity has been restored by the church's acknowledgment of what has been done to them, " he said. "To the extent that is an expression of victory, this is a victory. "
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