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Dallas lawyer wants new judge, verdict

NCR Staff

"Will it stop? Do you think it will stop now," attorney Sylvia Demarest asked a reporter days after a jury found the Dallas diocese to be "grossly negligent" in its handling of clergy sex abuse, returning a $119.6 million verdict in favor of 11 plaintiffs.

Demarest represented three of the plaintiffs in the 11-week trial leading up to the largest judgment ever against the church for the actions of one of its priests. Defendant in the case besides the church was Rudolph "Rudy" Kos, a former priest who is living in San Diego under an assumed name.

"I certainly hope this is a wake-up call to the bishop and to others to take adequate measures, to institute prevention programs, to stop the secrecy," Demarest said a few days after the July 24 verdict. "The church is an institution that has been knowledgeable and has been remiss. Someone had to stand up and say this has to stop. It turned out to be my responsibility.

"They need to tell parishioners, 'We don't need priests taking boys on overnights. We don't need beer in the rectory.' We don't need this. And parents need to know these are signs of an unhealthy relationship."

Legally and emotionally, the issue is far from settled, however. Within days after the verdict, Randal Mathis, attorney for the diocese, was preparing to appeal the ruling, even as other young men alleging abuse were stepping forward.

Mathis is aiming for a dismissal of the judgment or at least a new trial. He has also filed a motion to recuse the judge who presided over the trial, and he is embroiled in a legal battle with diocesan insurers.

"I may have to eat crow in 18 months, but I've never lost a case I was so certain would be reversed on appeal as this one," Mathis said. "I expect to retry this case two years from now." Regardless of the outcome, the diocese will pay for therapy for plaintiffs on an "as needed" basis, he said.

Plaintiffs were awarded $101 million in actual damages for medical expenses, loss of earning capacity and mental anguish, in addition to punitive damages totaling $18 million.

The motion to recuse Judge Anne Ashby -- that is, to request that posttrial motions be handled by another judge -- is related to her reactions to the trial, Mathis said. He cited two incidents in the motion: Ashby's remarks to plaintiffs and attorneys after jurors left the courtroom for deliberations and a photograph in The Dallas Morning News showing her hugging one of the plaintiffs after the trial. In her courtroom remarks, Ashby said she had grieved over stories of plaintiffs' suffering. She urged them to hold on to their faith and said she prayed for hope and healing.

Windle Turley, attorney for eight plaintiffs, said he would contest the motion to recuse. Ashby's actions were neither unusual or improper, he said. "She has a heart. Some judges don't have. She didn't show any bias toward one party. I think she shook hands or embraced just about everybody in the courtroom, jurors and everyone else."

The dispute with insurers centers on what, if anything, they will pay in damages. A day after the trial ended, Mathis sued Interstate Fire & Casualty Co. and Lloyds of London in state court, aiming to head off disputes about coverage. A few days later, however, Interstate sued the diocese in federal court, saying it should not be liable for $34 million in indemnity coverage based on the jury's finding of gross negligence. Mathis hopes to have the federal suit dismissed.

Jurors in the sex abuse trial assessed by far the greater financial burden to the diocese -- at least 80 percent in all but one of the cases -- with the remainder assessed against Kos. Jurors found that the diocese had engaged in fraud and a conspiratorial cover-up by allowing Kos to abuse boys from 1981-1992.

Criminal charges are pending against Kos, who as a teenager served time in juvenile detention for molesting a young neighbor. Turley said that other young men alleging abuse by Kos are coming forward. Some reports suggest that Kos may have had as many as 50 victims. Kos has denied some of the abuse allegations.

Also pending are civil suits against the Dallas diocese and two other clerics accused of molesting minors, Fr. Robert R. Peebles and Fr. William J. Hughes. Ray K. McNamara, a therapist hired by the diocese, is also a defendant.

Meanwhile, Bishop Charles V. Grahmann made an unsuccessful attempt to apologize to plaintiffs. They had planned to attend Mass together on Sunday after the trial ended to show gratitude to the one priest who had, in their view, emerged as a hero. It was Fr. Robert Williams one of two priests who had repeatedly urged diocesan leaders to investigate Kos and then testified for the plaintiffs at the trial. "There has been a failure of responsibility by the leadership of this diocese," Williams said publicly after the verdict. "In that sense, I feel the verdict was a just one."

But when plaintiffs learned that Grahmann had decided to show up at the same Mass and apologize from the pulpit, they decided to stay away.

Plaintiff Robert Hultz, 25, said, "A lot of us were going to be white-knuckling it just to set foot in a church. I felt the bishop was turning it into a media event for himself."

Hultz said he and other plaintiffs had formed a strong bond during the trial. "Each one of us shared our whole lives and our darkest memories. I will carry part of each one of them with me for the rest of my life," he said.

Hultz said the feeling he and other plaintiffs had after the verdict was "indescribable. It was a validation the church never gave us," he said.

Hultz and other plaintiffs shed their anonymity after the verdict, giving names and statements to the press. "This trial was so beneficial for these boys," Demarest said. "It was unbelievable to see them at the end, after being so embarrassed and so shameful for so long."

Among issues Mathis plans to raise in the appeal are the statute of limitations, the amount of money awarded plaintiffs for intangible damages such as mental anguish (ranging from $5.75 million to $8.8 million per plaintiff), and constitutional issues he felt were not addressed.

"We think the statute of limitations law is clear that nine of the 11 plaintiffs are barred" from seeking damages, Mathis said. "I would expect that their claims would be dismissed entirely." But if that doesn't happen, he said, rulings related to evidence admitted in court -- some of them related to First Amendment questions -- could result in a new trial, he said.

For example, Mathis said, plaintiffs' attorneys challenged actions of the Dallas diocese's marriage tribunal in annulling Kos' marriage before he was admitted to seminary, saying "red flags" should have been noted then. Mathis believes the tribunal's methods are protected by First Amendment rights.

Further, honoring requests from plaintiffs' attorneys, the judge had barred Mathis from using the word "constitutional" during the trial, he said. Objections related to First Amendment rights were registered as "Objection A."

"I had to speak in code," he said. "I'll take serious issue with that on appeal."

If the Dallas verdict holds up on appeal, the estimated amount of payouts related to clergy sex abuse in the United States will edge closer to $1 billion. Although most payouts have been accompanied by gag orders, people who have followed the issue closely estimate the pre-Dallas amount at $650 million.

Msgr. Francis Maniscalco, spokesman for U.S. Catholic bishops and staff member to the bishops' ad hoc committee on clergy sexual abuse, said, "I can't dispute any figure because I really don't know." Maniscalco said he knows of no national survey that would provide verification.

Maniscalco said the Dallas case "goes back to a period when the National Conference of Catholic Bishops was learning to deal with the problem." He said he had noted "a definite falloff" in new cases reported recently.

(Plaintiffs in Dallas reported the abuse began in 1981, drew complaints in the mid-1980s, and continued until 1992. In 1985, NCR drew national attention to the then little-reported problem of sexual abuse by Catholic clergy with articles and an editorial urging bishops to tackle the problem. Also in the mid-1980s, 50 victims of Fr. Gilbert Gauthe shared a $22 million settlement and Fr. Thomas Doyle, a canon lawyer, warned bishops in a major report to take action against the growing problem.)

Russell Shaw, writer, editorial consultant and former spokesman for the National Conference of Catholic Bishops, told NCR, "I have found the situation in Dallas very hard to understand because of the timing. I can understand naivete in confronting these cases 20 to 30 years ago, but this case is of much more recent vintage. I would think the people in charge would have been sufficiently sensitized to the problem.

"It cries out for explanation," he said. "It comes pretty close to indefensible."

National Catholic Reporter, August 15, 1997