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Charges against clergy are elusive

Monday, April 19, 2004
By STEPHANIE BARRY - Springfield, MA Republican

SPRINGFIELD - Facing a virtual graveyard of failed clergy abuse prosecutions nationwide, the county's top prosecutor was unusually expansive recently as he announced plans for a grand jury probe into ex-Bishop Thomas L. Dupre.

Though the last two years of pedophile priest allegations unfolded in the shadow of the Catholic calamity in Boston, Hampden County District Attorney William M. Bennett is poised for a national first. If he is able to bring abuse-related charges against Dupre for alleged molestation of two boys more than 25 years ago, Bennett will achieve what no other prosecutor has.

A string of intense criminal investigations of top clergy have not produced indictments - most notably in Boston - despite startling evidence of widespread child molestation and apparent cover-ups. An examination of cases in those cities shows that Bennett will face a number of obstacles, not the least of which is statutes of limitations and the difficulty of convincing a grand jury - in this case a heavily Catholic one - of the probability of a religious leader's guilt.

In Palm Beach, Fla., two bishops from the same diocese resigned in succession in the late 1990's after admitting they molested boys many years earlier.

But prosecutors were unable to put either behind bars, largely because the alleged crimes were too old to prosecute under the statute of limitations.

"There's no magic way around it," said Bernie McCabe, Florida's Pinellas-Pasco County state attorney.

His office successfully prosecuted a small number of priests whose victims were under 12. There is no statute of limitations for sex crimes against those under 12 in Florida.

Prosecutors in Boston, Long Island and New Hampshire convened grand juries but were unable or unwilling to hold leaders of the dioceses criminally accountable for failing to stop abuse, either because statutes of limitations had expired or the penalties associated with lesser charges amounted to little more than a slap on the wrist.

After a 16-month grand jury probe during which advisers said Attorney General Thomas F. Reilly researched many "creative" prosecution tactics in Massachusetts, Reilly did not seek indictments and instead released a 91-page report. The document lambasted former Cardinal Bernard F. Law and others for "massive and prolonged mistreatment of children by priests," prompting what Reilly called "the greatest tragedies to befall children in this Commonwealth."

The investigation found there were probably close to 1,000 clergy abuse victims in the archdiocese over 60 years.

In Rockville Centre, N.Y., a grand jury failed to return indictments against church leaders there, despite uncovering a legion of victims and a disturbingly familiar pattern of shuffling abusive priests. Again, the panel's primary stumbling block was the amount of time that elapsed between the abuse and the investigation. Prosecutors there released a 180-page report detailing the church's misdeeds. Unlike Dupre, no church official was accused of abuse, but instead were accused of covering it up.

Bennett announced in February that he would investigate whether Dupre committed sexual abuse and tried to cover it up. Earlier this month, state police attached to Bennett's office raided the home of convicted child molester Richard R. Lavigne of Chicopee, a defrocked priest accused over the years of sexually abusing more than 30 boys.

In Manchester, N.H., attorneys general prosecuted three priests, but a grand jury stopped short of indicting the bishop as the head of a "corporation" found to have committed criminal acts, though he was not accused personally of any wrongdoing. Prosecutors opted instead to reach a settlement with the diocese, waive grand jury secrecy and release 9,000 pages of evidence that told of pervasive abuse and questionable forgiveness.

"One of the reasons we opted to settle was a recognition that even with a conviction, it was pretty limited in terms of what we could accomplish in the courts," said Will Delker, senior Assistant Attorney General in Manchester, of the child endangerment charges against the diocese he believes they likely would have successfully prosecuted. "We wanted to get the whole story out there."

In Palm Beach, McCabe only briefly considered prosecuting one of the accused bishops, the Rev. J. Keith Symons, who resigned from his post in 1998 after admitting to abusing altar boys early in his ministry. Symons' successor, the Rev. Anthony J. O'Connell, then quit in 2002 after he admitted repeatedly abusing underage seminary students many years ago. Neither were ever charged, partly because their victims were over the age of 12.

Statutes of limitations have thwarted clergy abuse prosecutions across the country. In Massachusetts, the law generally dictates that child molestation charges may be brought within 15 years after a victim turns 16.

For Bennett's part, acknowledging the statute challenge was his first concession during a very public announcement that he would nonetheless investigate Dupre, accused of abusing two minor boys (now 40) more than 25 years ago when Dupre was a parish priest. Dupre abandoned his post Feb. 11, one day after The Republican confronted him with the accusations.

Nonetheless, Bennett announced in front of a phalanx of news media March 5 that he was preparing to explore an array of charges against Dupre, including child rape, explaining that limitations may be tolled or extended under extremely limited legal parameters.

One possible argument to extend the law involves whether the accused made efforts to conceal or stifle the victims. The accusers' lawyer, Roderick MacLeish Jr. of Boston, has said the men had recent contact with Dupre, who asked them to remain quiet about the alleged abuse. Other potential charges include obstruction of justice, witness intimidation, conspiracy and others under federal and international law, since Dupre's accusers said he took them on trips over state lines and into Canada.

One legal analyst in Massachusetts who advised the state attorney general said if there was ever a time for reticent prosecutors to take risks, it is now.

"My pitch from day one was that there had to be a crime because of the monumental nature of the harm, even if it took a sort of push of the envelope," said Wendy J. Murphy, former sex crimes prosecutor and professor at Boston's New England School of Law, of the probe in that city.

"Most of the traditional crimes they were considering - obstruction, accessory before and after (a crime) - really didn't apply. My feeling was they should do something out of the ordinary and risk the possibility of a reversal on appeal."

But many in the local legal community feel Bennett has already taken risks. The very public announcement from the usually close-mouthed prosecutor surprised many, though none were willing to speculate publicly about its significance to the case.

"I'm just saying that I found (the announcement) highly unusual for this district attorney," said Dupre's lawyer, Michael O. Jennings of Springfield.

Jennings, a former law partner of Bennett, refused further comment on the potential success of the investigation or Dupre's reaction to the accusations against him.

The former prelate retained Jennings after Dupre retreated to St. Luke Institute, a Maryland facility renowned for treating clergy with emotional problems, including sexual predilections for children and teens.

Though he is not the first prosecutor to consider indictments against a high-ranking clergy member, Bennett said recently that he duly satisfied both ethical and legal standards before bringing the case to a grand jury. But less-than-successful efforts before his were not among his considerations.

"I'm not worried about that," Bennett said. Nor is he worried about the heavily Catholic pool from which he pulls grand juries and trial juries, he added.

The most recent U.S. Census statistics show Hampden County's population at just over 483,000. A spokesman for the Roman Catholic Diocese of Springfield - which covers the state's four western counties - said there are close to 154,000 in Hampden County alone reporting affiliation with a parish. That's 32 percent of the local population, and there are likely thousands more Catholics unaffiliated with a particular church.

Bennett said he feels the vast majority of jurors regard their civic obligation with grave sincerity and do not let personal beliefs, religious or otherwise, impede their judgment. But both trial consultants and prosecutors say there was a time not so long ago when Catholicism was too ingrained to understate.

Springfield Assistant U.S. Attorney Ariane D. Vuono was a state prosecutor assigned to Hampshire and Franklin counties in 1991 when Lavigne was the first Catholic cleric to be charged locally with child rape. He pleaded guilty to two counts of molestation before the formal jury selection phase, but Vuono said they had begun to cull a potential pool of jurors when the plea came.

The number of jurors (in eastern Massachusetts after a change of venue) who opted out for religious reasons was high.

"I expected a lot, and there were a lot," Vuono said during a recent interview. "But today, to pick that jury ... I wouldn't have one qualm."

She was referring to a changed climate in which men of the cloth are no longer believed to be above committing crimes. During the Lavigne hearings, which were packed with his supporters, prosecutors unsuccessfully asked the judge to order the priest to remove his collar during court proceedings.

Lavigne was laicized by the Vatican last year after Dupre applied for his defrocking following months of criticism that the bishop was too slow to act. Lavigne, who has faced dozens of sexual abuse claims in lawsuits, is barred from presenting himself publicly as a priest.

He was the prime suspect in the unsolved 1972 slaying of a Springfield altar boy, though no charges were ever filed after DNA tests failed to conclusively link him to the crime. Bennett insists the investigation is still active, and is fighting the release of documents along with Lavigne's lawyer. The Republican and Greenfield lawyer John Stobierski are arguing a case before the state's Supreme Judicial Court that the documents be unsealed.

Maryland-based trial consultant Jeffrey Frederick was hired by local federal prosecutors for advice during the trial of convicted nurse-serial killer Kristen H. Gilbert of Northampton in 1999. Frederick, who also assisted prosecutors in pursuing Oliver North, said that while he agrees Catholics are a generally more cynical lot today, religion cannot be dismissed in a jury setting.

"There's a good possibility (being Catholic) could influence a jury facing a Catholic defendant. People are influenced by their experience in life," Frederick said. "But I think the pendulum has swung over to the other side. Many people, Catholic or not, would be accepting of the notion that (sex abuse) has happened."

Frederick and other jury experts say a juror's beliefs about sexual abuse are more pertinent when considering who should sit on a clergy abuse jury.

"I think it would depend more on people's attitudes toward sexual abuse and who do they find responsible for sexual abuse. It's like asking do you want smokers or non-smokers on a tobacco case. They still may differ on whom they hold responsible," said Diane Y. Levesque, of New England Trial Consulting in Dover, N.H.

Copyright 2004 MassLive.com. All Rights Reserved.

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