Experts say grand juries unlikely to indict Catholic bishops who supervised abusive priests

By Rachel Zoll, Associated Press, 06/23/02

As prosecutors turn to grand juries to investigate sex abuse by Roman Catholic clergy, church observers are wondering whether the ultimate target of criminal charges will be a cardinal or bishop who mishandled molester priests.

Several legal experts say that successfully prosecuting a church leader for protecting abusers would be a formidable task, since attorneys would need to prove that a bishop meant to help offenders commit crimes. The details revealed since the abuse crisis erupted in January do not support that theory, they say.

Yet the possibility remains that a prosecutor who found a case within the statute of limitations would bring charges in the current atmosphere of public outrage over the scandals.

"They're elected officials and they're responsive to the electorate," said Robert M. Bloom, a professor at Boston College Law School.

"One could argue they've convened a grand jury for political reasons. One could also argue they are looking to make sure that there are no other priest predators out there."

As the molestation crisis intensified this year, prosecutors began speaking publicly of their anger over church leaders' failure to report many abuse claims to civil authorities. Grand juries have been convened in nine states to investigate priests and dioceses.

In Cincinnati, Prosecutor Michael Allen subpoenaed Archbishop Daniel E. Pilarczyk in April, but excused him after the archbishop's lawyers provided prosecutors with undisclosed evidence they had demanded. The archdiocese's chief record-keeper, Chancellor Rev. Christopher Armstrong, did testify.

Among the most aggressive prosecutors has been Massachusetts Attorney General Thomas F. Reilly, who convened a grand jury after Boston Cardinal Bernard Law acknowledged allowing a pedophile priest to stay in church work.

Law's admission put every U.S. diocese under scrutiny. At least 300 priests have been taken off duty over allegations of sexual abuse, but most of the claims are years old and outside the statute of limitations.

Reilly has been investigating whether Boston church officials committed any crimes by transferring molester clergy from parish to parish. He has recently indicated criminal charges are unlikely, but he could seek a court order, under the state's civil rights law, to force changes in how the Boston Archdiocese handles abuse claims.

"In criminal prosecution, you need intent," said Cary Edwards, a former New Jersey attorney general. "The church seemed to have its head in the sand. It was a bad moral act. But the institution was in denial that this was a criminal act."

G. Robert Blakey, a professor at the University of Notre Dame Law School, said if he were a prosecutor, he would also search for a means to hold the bishops criminally accountable. But he said there's no apparent way it could be done.

On the charge of aiding and abetting a crime, the prosecutor would have to prove that the bishop intended to transfer the offender to help him molest children. Although many prelates were guilty of bad judgment and arrogance, Blakey said, it appears they shuttled errant clergy among parishes to stop -- not facilitate -- the priests' wrongdoing, even though that strategy failed.

A criminal negligence charge also would be difficult to prove, since church leaders tried to stop the offender by sending him to treatment, Blakey said.

And for a conspiracy charge, the prosecutor would have to prove that the bishop and the priest agreed that the clergyman could molest children -- another unlikely scenario, said Blakey, who wrote the federal anti-racketerring law.

"The harm these administrators have done by moving these people is incalculable," Blakey said. "But if you wanted to indict a bishop, you'd have to have a theory about how the bishop helped the priest."

Patrick Schiltz, dean of the University of St. Thomas Law School in Minneapolis, believes district attorneys know they cannot bring charges but have been using grand juries anyway -- to intimidate church leaders and win points with voters.

"When you're a prosecutor and you convene a grand jury to investigate things that everyone would concede are years and in some cases decades beyond the statute of limitations -- that's a gross abuse of power," said Schiltz, who has defended dioceses in hundreds of civil abuse lawsuits.

But other legal experts say prosecutors are justifiably upset, considering many offenders escaped punishment.

Edwards said he saw a model in the successful recent prosecution of accounting giant Arthur Andersen. Federal attorneys charged the entire company with obstruction of justice for document shredding and destruction of computer records related to audits of bankrupt Enron Corp. A similar charge could be brought against the church for covering up abuse, he said.

"If I were still a prosecutor, I would be looking very heavily at indicting the church as a corporation," Edwards said. "You can't put a corporation or the Catholic church in jail, but you can fine them."

However, Edwards said he thought a district attorney would use that strategy only if there was "a real smoking gun," -- some strong evidence that becomes public.

Most prosecutors, he said, have no interest in prosecuting "very well-meaning bishops and cardinals of the church for making a mistake."

Grand Juries investigating Catholic misconduct cases. (As of August 2002)