Dallas lawyer wants new judge,
verdict
By PAMELA
SCHAEFFER 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
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