SF Weekly | January 19, 2005
At issue in the case is a trove of material that the church surrendered in 2002 after former San Francisco DA Terence Hallinan demanded that Levada turn over records pertaining to priestly sex abuse occurring as far back as 75 years ago.
Top: Archbishop William J. Levada
Below, top to bottom, California district attorneys who cooperated with the church to keep records related to sex abuse by priests in the San Francisco Archdiocese from being made public: Marin County's Ed Berberian, San Francisco's Kamala Harris, and San Mateo County's James Fox.
San Francisco Archbishop William Levada doesn't want the public to know about decades of alleged sexual misconduct by his clerics. But why are district attorneys in San Mateo, Marin, and San Francisco helping him keep secrets?
By Ron Russell
Seated in a Marin County courtroom, Father Gregory Ingels fidgeted nervously as he waited for his name to be called. Tall and distinguished-looking in his clerical garb, the prominent canon lawyer and former vicar for clergy in the Roman Catholic Church did not project the image of someone who'd been accused of sodomizing a teenage boy three decades before. Rather, he looked every bit the professorial figure who had served on the adjunct faculty at St. Patrick's Seminary and lectured widely before canonical bodies. Long a favorite of San Francisco Archbishop William J. Levada, Ingels had helped devise the American church's "zero tolerance" policy regarding priestly sex abuse that the pope signed off on in 2002. He had often been the church's legal point man in sex abuse cases, flitting around the country as an expert witness and going abroad on behalf of the Canon Law Society, the professional group devoted to the study of church law, to speak on the implications of the abuse scandal. In 2001, Levada tapped him to help set up the San Francisco Archdiocese's Independent Review Board, the panel entrusted with investigating clerics against whom complaints are lodged.
But in May 2003, Ingels was in a prosecutor's cross hairs.
His alleged victim, a male student at Marin Catholic High School where Ingels taught in the early 1970s, had cooperated with police in recording some recent phone conversations. In them, prosecutors said, Ingels had made incriminating statements corroborating the former student's account of being abused at age 15 during a family outing at Muir Beach in 1972. Even as Marin County District Attorney Paula Kamena pressed criminal charges, she was gathering information from another of Ingels' alleged victims, a woman who said the priest had also molested her repeatedly while she was a student at the school. (See sidebar, "Fast Times at Marin Catholic High.")
But Ingels was lucky. At his arraignment, his lawyers announced that he would postpone entering a plea. A month later, the U.S. Supreme Court -- by a 5-to-4 vote -- struck down as unconstitutional a California law that had extended the statute of limitations for prosecuting suspected sex abusers. The law -- enacted during a national furor over sex abuse in the church -- had allowed prosecutors to bring abuse cases against many clerics years after the alleged crimes had occurred. The Supreme Court decision -- Stogner vs. California -- said the retroactive lengthening of statutes of limitation from a few years to, in some cases, decades violated the Constitution's ex post facto clause, which prohibits the enactment of laws that criminalize behavior after the fact.
Along with many others, Ingels walked.
The Stogner decision stopped criminal investigations across California in their tracks. By ending any possibility of public trials in those cases, it also kept information on decades of alleged misconduct by Roman Catholic clerics from entering the public realm. Consequently, the decision kept secret the record of the church hierarchy's response -- or lack of response -- to reports of priestly misconduct.
In the eyes of victims' advocates and other critics, Archbishop Levada's handling of such cases has been notable for its lack of openness. Even after the Stogner decision ended the prosecution of Ingels, the archbishop continued to push for secrecy in sex abuse matters. And district attorneys of the three counties within the archdiocese's territory -- San Francisco's Kamala Harris, San Mateo's James Fox, and Marin's newly appointed Ed Berberian -- have taken what some other prosecutors view as extraordinarily questionable steps to help Levada keep records of clerical wrongdoing in Northern California from public eyes.
In recent months, lawyers for the San Francisco Archdiocese have taken the unusual step of going to court in Marin County, seeking to block the District Attorney's Office there from turning over to SF Weekly documents related to Ingels and other accused priestly sex abusers. The Weekly sought the documents in August under the state's public records law, and Kamena, who has since resigned as DA, agreed in writing to provide some of them. But the Marin District Attorney's Office also felt compelled to inform the archbishop about the impending release, and church lawyers entered the fray, filing a writ of mandate in an attempt to prevent the material from becoming public. The archbishop's petition -- a quarter-inch-thick legal filing -- offers many arguments for keeping the records secret.
Those arguments are based in a remarkable reality: The Marin County District Attorney's Office did not seek a grand jury subpoena that would have compelled the church to give prosecutors the documents. Instead, the Marin DA signed a legal agreement, or protocol, that, the church contends, requires the documents to remain secret unless a criminal prosecution is instituted.
Some veteran prosecutors consider the protocol -- a version of which the San Mateo County DA also signed -- extraordinary and unwarranted. "As far as we were concerned, that was like making a deal with the devil," says Los Angeles Assistant DA Bill Hodgman, whose boss, District Attorney Steve Cooly, rejected a similar agreement pushed by church lawyers.
Marin County Superior Court Judge Vernon F. Smith -- the third judge to whom the case has been assigned -- is to hear arguments on the church's petition Jan. 26.
At issue in the case is a trove of material that the church surrendered in 2002 after former San Francisco DA Terence Hallinan demanded that Levada turn over records pertaining to priestly sex abuse occurring as far back as 75 years ago. Such records could show, among other things, when Levada and other church officials became aware of specific accusations against individual priests and what was done about the accusations and the priests.
At the time, Hallinan's move elicited grumbling from various quarters, including the San Francisco Chronicle, which accused him in an editorial of engaging in a fishing expedition. But shortly after Hallinan's demand, Levada quietly began to jettison some of his accused priests, bumping a few into retirement and placing others on leaves of absence. Not wanting to be left behind, the district attorneys of San Mateo and Marin counties fell in step with San Francisco, pursuing church documents related to clerics in their jurisdictions.
And some of what they found enabled Marin prosecutors to pursue Ingels, a high official within the local clerical establishment.
Now that Stogner has mooted criminal action on most of the alleged wrongdoing described in the documents turned over to Bay Area prosecutors, there would seem to be little law enforcement reason for district attorneys to keep many of the records secret. But head prosecutors in San Francisco and San Mateo counties have refused public records requests seeking the documents.
In Marin County, meanwhile, the position of the District Attorney's Office on release of the records is muddled at best, with the office first agreeing to release the records, and then, apparently, undermining its own position by failing to file court documents that set out a legal rationale for the release.
San Francisco District Attorney Kamala Harris has assumed a pro-secrecy posture, rejecting the public records request that her Marin counterpart initially chose to honor. (Harris' press spokeswoman, Debbie Mesloh, said that the DA would comment on the matter but that she was unable to do so until after the deadline for this article.) Linda Klee, Harris' chief of administration and spokeswoman on the issue, says that making the church documents public would have a "chilling effect" on potential witnesses in future prosecutions.
Pressed as to why the public interest isn't served by making the documents available, Klee tells the Weekly, "If we did it for you, we would have to do it for everybody. Where do you stop, and where do you start?"
Klee says the public records law allows her office to withhold the documents, but she also acknowledges that it does not require her office to keep them secret. She says the decision to withhold is based on long-standing office "policy."
The policy could not be very old. Former District Attorney Hallinan says that his office had no such policy, that he declined to sign the protocol the church offered him, and that he believes the records that he obtained from the church ought now to be released under the California Public Records Act.
Hallinan also expresses disappointment that Harris, who defeated him in his bid for re-election to a third term in 2003, has chosen to keep the church sex abuse materials under wraps. "My policy was and still would be that when I received any sort of materials like that they would become public records," Hallinan says. "Those are materials that should be brought out to the public."
Like Harris, San Mateo District Attorney James Fox refused to release church records in his control. A letter from his top deputy offered little rationale for refusing the Weekly's records request, saying merely that his office views the records it possesses as "confidential." When asked about the matter, Fox cited his office's arrangement with the archdiocese: "We had an agreement with the archdiocese which obligated that there would be confidentiality, and we're keeping that agreement."
In its attempt to prevent the Marin County DA from making church records public, the San Francisco Archdiocese's legal team has -- perhaps unintentionally or unwillingly -- provided a glimpse at how the church has maneuvered to keep details of sex abuse allegations secret. In its court documents, the archdiocese reveals that it entered into written agreements with both Kamena and Fox; those protocols allowed the church to surrender documents to the DAs largely on its own terms.
Among other things, the protocols gave the church the extraordinary ability to determine what materials were appropriate to turn over and even stipulated that "unless compelled by legal process" none of the information provided was to be made public. Indeed, church lawyers cite this privacy provision as the basis of their legal challenge to SF Weekly's public records request.
The Weekly's position in the case centers on the argument that no private agreement can invalidate duties the California Public Records Act imposes on public officials, including district attorneys.
In briefs filed in connection with the court challenge, the archdiocese's legal team, headed by former U.S. Attorney and current Dean of San Francisco Law School Joseph Russoniello, asserts that the protocol entered with Kamena was developed after a meeting with the San Francisco DA's Office. The protocol, the briefs contend, became the "template" for a model agreement on the handling of church abuse documents later adopted by the California District Attorneys Association.
A letter that Jack Hammel, the archdiocese's legal counsel, sent to then-Marin County DA Kamena in September expresses displeasure at her stated intention to honor the Weekly's document request. The letter claims that the agreement was "developed following a meeting with various legal representatives of the Archdiocese and the San Francisco District Attorney's Office, including myself and Mr. Hallinan."
What the assertions fail to mention, however, is that Hallinan would have no part of it.
"I told Jack Hammel in no uncertain terms that I wouldn't go along with anything like that," recalls Hallinan. The former DA says he "rejected as inappropriate" negotiating for documents with a "potential target of a criminal investigation." Hallinan says he "wouldn't do a deal like that for [the archdiocese] any more than I would if it were an Elks Club with a bunch of pedophiles. Those are the kinds of deals that have allowed the church sex scandal to go on as long as it has."
Hallinan isn't alone in his opinion.
In Los Angeles, Assistant District Attorney Hodgman, a career prosecutor who convicted former Lincoln Savings & Loan kingpin Charles Keating and oversaw the O.J. Simpson trial, says he learned about the template that the District Attorneys Association developed at about the same time Hallinan was rejecting it. He also wanted nothing to do with it. "We thought it was a bad idea; something wholly unsuitable for us to participate in," says Hodgman. His boss, Steve Cooley, turned to a grand jury to subpoena sensitive documents related to more than 30 Southern California priests accused of molestation.
Indeed, there are features in the Marin agreement that many potential criminal defendants might wish their prosecutors would adopt. The protocol basically puts church officials on the honor system for turning over materials that they determine may be of relevance to the district attorney.
For example, the church obligates itself to provide the name, address, and telephone number of alleged victims, alleged perpetrators, and known witnesses of purported sexual abuse. But the pact specifically relieves church officials from searching every personnel file, past or present, to determine whether the file contains useful information. And, glaringly, it offers no sanctions should the church fail to comply. "I would say it's not worth the paper it's written on; it's a joke," says Robert M. Tobin, an attorney who represents several clients suing the church over alleged sex abuse and who has seen the protocol.
Dave LaBahn is the executive director of the district attorneys group that developed the template in consultation with the California Catholic Conference; he's a supporter of the agreement. He says he believes about "15 or 20" of the state's 58 district attorneys signed such agreements in their quest for church documents.
But even LaBahn acknowledges that "the protocol only works if there's willing cooperation [on the part of the church]; if there's no willing cooperation, then it's of no value."
Levada has won few friends among advocates for victims of sex abuse in the church. Those advocates and other critics charge that the archbishop has dragged his feet in response to pleas for help and that his top aides have worked to keep complaints about priestly sex abusers shrouded in secrecy.
In an open letter to the archbishop in November, the Survivors Network of those Abused by Priests, known as SNAP, urged Levada to withdraw his name as a candidate to replace outgoing Bishop Wilton D. Gregory as head of the U.S. Conference of Catholic Bishops. (In subsequent balloting, Levada finished near the bottom of 10 bishops vying for the post.)
As San Francisco's archbishop and earlier as bishop of Portland, Ore., Levada has allowed priests to remain in active ministry who, he knew, were accused of molesting children. In a deposition in connection with a Portland case last year, Levada acknowledged having reinstated an Oregon priest, Father Joseph Bacallieri, to parish ministry in 1994, barely two years after sending him to a treatment program for child molesters.
Levada has disclosed knowing of sex allegations against Ingels since mid-1996. Yet Ingels' career flourished until Hallinan demanded church sex abuse records.
With Levada's blessing, Ingels served as an adjunct professor at St. Patrick's Seminary in Menlo Park and performed parish duties at St. Bartholomew Church in San Mateo while maintaining his high-profile role as a canon lawyer. Levada appointed Ingels director of formation for the Permanent Diaconate, entrusting him with the job of supervising church deacons within the 425,000-member archdiocese. Even after prosecutors learned of sex complaints that turned up in Ingels' church files and Levada finally removed him from public ministry, the archbishop allowed Ingels to continue his work for the Archdiocesan Tribunal, helping adjudicate annulment cases.
Perhaps the biggest single blow to Levada's credibility on the sex abuse issue occurred last October. That's when the founding chairman of the six-member Independent Review Board dropped a bombshell by quitting and accusing Levada of preventing disclosure of the board's findings related to more than three dozen priests.
"I just decided that I had had enough; that I couldn't be a part of something that wasn't about openness and transparency," clinical psychologist James Jenkins tells SF Weekly. He faults Levada for "deception, manipulation, and control" of the panel, saying the archbishop has used it as "little more than an elaborate public-relations scheme."
Shortly after SF Weekly requested documents relating to allegations of sex abuse by Catholic clergy, Jack Hammel, the archdiocese's legal counsel, wrote to former Marin DA Kamena to express "shock" that her office had decided to comply with SF Weekly's request "in direct contravention of our previous written agreement."
Hammel reminded her that Ed Berberian, the former assistant DA whom the Marin County Board of Supervisors last week appointed to serve out the remainder of Kamena's unexpired term, had helped draft the protocol. (Kamena resigned from office effective Jan. 4, citing health reasons and the desire to relax and spend more time with her family; Berberian had assumed the role of acting DA weeks before her official departure. Attempts to reach her for comment were unsuccessful.)
Berberian, who had been Kamena's point man on the issue from the start, told SF Weekly in September that he had notified the archdiocese about his boss' plans "as a matter of courtesy."
After Hammel expressed displeasure, however, the DA's Office voluntarily agreed to hold off turning over the materials until the archdiocese could formulate a legal response.
In trying to stop the Marin district attorney from honoring the records request, the archdiocese asserts that releasing the records would cause "irreparable harm" to the privacy and reputations of "priests, victims, and other third-parties." Church lawyers also say it violates the protocol's privacy assurance. The agreement states, "Unless compelled by legal process, or required to be revealed in order to conduct a prosecution, none of the information provided will be provided to the public." At issue is the phrase "Unless compelled by legal process." The DA's Office is unlikely to have agreed to turn over the material unless it was convinced that the newspaper's request falls under the rubric of "legal process."
But in view of the church's vociferous opposition, it isn't clear if Berberian shares the sentiments of his predecessor with respect to releasing the material. Or whether, like San Francisco's Harris and San Mateo's Fox, he would prefer to march to the archbishop's drummer.
Despite voluminous legal arguments filed by lawyers for the church, under Berberian's watch the Marin County Counsel's Office, which represents the DA's Office in the archbishop's action, missed a deadline to respond with written legal arguments as to why the materials should be released. Some legal observers consider failure to file such a brief as tantamount to surrender in the case.
Berberian has declined to discuss the matter, including what role he played in the controversial protocol, until after the judge decides what's to be done with the materials.
Until then, at least, whatever the documents contain remains a contentious secret.