Arrested Priest Is Guilty until Proven Innocent

By E.J. Montini
The Arizona Republic [Phoenix AZ]
November 27, 2005

http://www.azcentral.com/news/columns/articles/1127montini27.html

No one charged with a crime in Arizona is "innocent until proven guilty," especially if he is a priest. Not after all the arrests, all the lawsuits, all the news reports.

A suspect may be presumed innocent in a courtroom, but out in the world it's pretty much just the opposite.

We live in a county where the most popular politician is a sheriff who revels in making life miserable for those in his jails. When told once that two-thirds of his inmates are pretrial defendants who are "presumed innocent" he said, "They are criminals. We don't run a first-class and a second-class section." He's been re-elected three times.

In civics classes, American children learn a principle of justice described by writer Sir William Blackstone, who said, "It is better that 10 guilty persons escape than that one innocent suffer."

Outside of school, we no longer seem to believe that there are innocents.

Last week, Maricopa County Attorney Andrew Thomas announced that his office had filed a 10-count criminal complaint against Monsignor Dale Fushek accusing him of indecent exposure, contributing to the delinquency of a minor and assault against five boys and two young men in the 1980s. The complaint listing the misdemeanor charges described a series of lurid encounters alleged to have taken place between Fushek and the boys while he was pastor of St. Timothy's Church in Mesa.

Fushek's attorney, Michael Manning, said that the incidents "never happened" and that Fushek will fight them at trial.

It's too late.

The first call I got about the Fushek arrest was from a man who said that it was "about time they got that guy." We all agree that Fushek deserves his day in court. Who knows? A jury might even find him "not guilty." But he already has lost.

Manning knows this, too. He once won a settlement of more than $8 million for the family of a man who died at the hands of officers in a Maricopa County jail. The dead man had not even gone to trial, yet most of the people I heard from at the time believed that he got what he deserved. After all, they said, he wouldn't have been locked up if he hadn't done something.

Outside the courtroom, "innocent until proven guilty" has become "guilty until you prove to us that you're innocent." And unless all of Fushek's accusers recant their testimony, that won't happen.

Fushek was once the most popular pastors in the Phoenix Diocese. But in 2002 word got out that seven years earlier the diocese settled a sexual-harassment claim against Fushek for $45,000. Supposedly, the payoff was made to avoid the cost of a lawsuit. Manning was Fushek's lawyer in 2002, and I asked him then if the settlement had been a wise decision.

"If I were his (Fushek's) lawyer in 1995, I probably would not have been able to foresee the atmosphere in 2002. And I probably would have advised him that if you can settle this for less than the cost of defending it, do it," he said. "Today I would not give him that advice. Today I would say to him, 'Father Dale, in 2002 no priest who feels this is an improper claim can do anything but try the case.' "

It's even more true today, though trying the case won't clear Fushek, no matter what the verdict.

Our presumptions have changed. Maybe it's our reaction to crime or to the news media or to popular culture. I asked a defense attorney recently if he believed that most people presumed that his clients were "innocent until proven guilty."

"Do you presume me to be naïve?" he answered.

Reach Montini at ed.montini@arizonarepublic.com or (602) 444-8978.