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Notes to meeting reveal church plans in Kos case

NCR Staff

Minutes from a private meeting between Bishop Charles Grahmann and a group of powerful laymen reveal plans for an aggressive legal and public relations campaign designed to discredit, and eventually overturn, the $119.6 million verdict in the Rudolph Kos sex abuse case. The meeting took place in a downtown Dallas social club Aug. 11.

Notes from that meeting also contain evidence of possibly unethical communication between a judge slated to hear a crucial motion in the case and an attorney present at the meeting. The judge has since disqualified himself. Among those gathered to advise Grahmann were a district judge, a state representative and a former president of the state bar association.

A Dallas jury returned the verdict against the diocese in late July, finding it guilty of "gross negligence" for its handling of reports of sexual abuse by Kos, a priest who has since resigned.

Lawyers for the diocese have announced plans to appeal, moving initially to recuse trial judge Anne Ashby on charges of bias in favor of the plaintiffs.

The minutes of the Aug. 11 meeting, along with notes from other strategy sessions involving diocesan officials -- anonymously leaked to the plaintiffs' attorneys and subsequently made part of the legal record -- paint a picture of church officials and their lay supporters bitterly resentful of the jury's verdict.

While the notes do not always make clear who is speaking, variations on the remark "we are innocent" appear several times. Bishop Grahmann is quoted as charging that "anti-Catholic bias" played a role in the trial and subsequent events. Another person claimed the diocese did not get "a fair day in court."

The overall strategy that emerges from the notes is twofold. First, participants agreed to a public relations campaign to win back the Catholic faithful by assuring them of the church's compassion while simultaneously suggesting to the public that the trial was unfair and the award exaggerated. Second, while the legal issues are described as "complex," one core strategy is clear -- go after Ashby.

Portions of the notes that argue for aggressive public relations efforts include the statement "we can control the media," along with plans to focus blame on the trial judge, equating her with Judge Lance Ito and suggesting that she failed to "control the courtroom." The verdict is blamed on a "runaway jury."

Worried that these efforts might backfire, the notes include the caution to "take heat off the bishop." The notes also identify "protection of assets" as a key diocesan objective.

Nowhere in the documents is there any discussion as to whether the diocese bore some responsibility for failing to deal with Kos sooner. No conversation is recorded about dropping the appeal or trying to negotiate a settlement.

Lisa LeMaster, newly-hired spokesperson for the diocese, described the meeting as simply "one in a whole series of conversations. The bishop was asked to come," she said, "and he simply listened."

One measure of the seriousness with which Grahmann took the Aug. 11 meeting and the other sessions documented in the notes, however, is LeMaster herself. Her name is mentioned on one page of handwritten notes as a public relations expert the diocese might consult. Days later, Grahmann put LeMaster on retainer.

LeMaster, president of the LeMaster Group, a Dallas public relations firm, declined to tell an NCR reporter how much she was being paid for her services. "My competitors would love to know that, but it's a proprietary matter between me and the boss [Grahmann]," she said. The issue is especially sensitive since the diocese has argued that it cannot satisfy the $119.6 million verdict because it doesn't have the money.

LeMaster has a reputation as a tough, spirited antagonist. During an interview for this article, she made a point of asking to be quoted to the effect that attorneys for the plaintiffs in the Kos matter were motivated by the prospect of large contingency fees.

For victim and plaintiff Robert Hultz, this evidence of continuing diocesan efforts to overturn the verdict adds insult to injury. "It's obvious that the arrogance of power in the Dallas diocese is still going on," he said in a telephone interview.

Hultz said he has wanted Bishop Grahmann to talk with him about what happened and to admit the church made a mistake. "Instead, they point the finger at me, make me out to be the bad guy," he said, "when all I ever did was stand up for myself."

LeMaster said that while "obviously" the diocese sympathizes with the victims, "the size of the award" requires an appeal. "The money's just not there," she said.

LeMaster refused to comment, however, as to whether the diocese would be willing to admit negligence if money weren't an issue. "I'm not good at that crystal ball type stuff," she said. "That isn't the situation we're in."

The charge of unethical conduct connected to the Aug. 11 meeting stems from the actions of lawyer Frank Finn, who reported at the meeting that he had contacted Judge Pat McDowell, a Catholic, about the defense motion to recuse the trial judge on charges of bias. McDowell, the presiding jurist for the Dallas region, told Finn that he planned to hear the motion himself.

Sylvia Demarest, lead attorney for plaintiffs, charged that the conversation was part of a broader diocesan effort to influence the outcome of the appeal. "The fix was in," she said, suggesting that individuals acting on behalf of the diocese -- possibly including Grahmann himself -- had devised a plan to remove the trial judge from the case and have it assigned to another judge by McDowell and to bring pressure to bear on the new judge to reduce the $120 million award or throw it out altogether.

"That's just an outrageous charge," LeMaster said in a phone interview. "It's important to note that these charges ... are coming from contingency lawyers making 40 percent of whatever judgment they can obtain," she said. "I guess we shouldn't be surprised."

At the bottom of a page of handwritten notes, a scrawled remark reads, "Judge on recusal = Catholic. Bp. has done all he can do." Demarest contends that the remark suggests involvement by Bishop Grahmann in an effort to influence McDowell and the eventual outcome of the case. "At the very least, it creates the possibility that the bishop himself was involved," she said.

In another place, McDowell's name is written with an arrow leading to the comment "would go to East Tx. judge." Demarest argues that this suggests a plan was in place regarding to whom McDowell would assign the case after recusing Ashby.

"The idea was to get the case into the hands of a judge they could influence and make the whole thing go away," Demarest said.

She said she still did not rule out the possibility that the diocese or individuals acting on its behalf might attempt to influence the assignment of the case at the state Supreme Court level. "If the bishops of Texas get together, there aren't many people with more influence around," she said.

Demarest conceded that, beyond the minutes, she had no evidence of any effort to influence the assignment of the case or its eventual outcome. Still, she said the notes alone are enough for her to request an investigation by the state bar association and the state Commission on Judicial Conduct.

Finn's actions alone constitute an arguably impermissible ex parte communication between a lawyer and a judge, according to Linda Eads, a specialist in legal ethics at Southern Methodist University. "If he's representing the diocese, it's definitely unethical," she told NCR. "He could be reported to the state bar for it."

Finn's precise role is in dispute. LeMaster argues that Finn was not a member of the defense team. "Frank Finn was not, is not and will not be involved in this case for the diocese," she said.

Nevertheless, she admitted that Finn had been presented as an attorney associated with the defense during the trial so that he could sit in seats reserved for lawyers in the crowded Dallas courtroom. She said she did not know if Finn had performed legal work for the diocese in the past.

If Finn was acting on behalf of the diocese in some capacity, the other attorneys at the Aug. 11 meeting also had an obligation to report his conduct, according to Eads. "Under article 8.4 of the state bar code, if a lawyer knows another lawyer has violated one of its provisions, he or she has an obligation to report it," she said. "If these guys knew Finn was an agent of the diocese, they could be disciplined."

McDowell has subsequently removed himself from the case and asked the chief justice of the Texas Supreme Court to appoint another judge to hear the appeal. No judge has yet been appointed. Under Texas rules of civil procedure, the trial judge -- in this case, Ashby -- cannot sign an assignment of judgment, which allows the plaintiffs to begin collecting the damages awarded by the jury, while a motion to recuse is pending.

National Catholic Reporter, September 5, 1997