Lawyers on Both Sides of Abuse Case Fight 'Zealously' for Their Clients

By Stephanie Salter
The Tribune Star
August 19, 2006

http://www.tribstar.com/news/local_story_231231816.html?keyword=topstory

[See also Breaking the Silence: Second Terre Haute Man to Join Abuse Lawsuit Recounts Time with Priest: Terre Haute Man Becomes 13th to File in Suit against Harry Monroe, by Stephanie Salter, Tribune Star (8/19/06).]

TERRE HAUTE — Patrick Noaker and Jay Mercer frequently cross one another's path — albeit mostly in court files.

Noaker, a native of Wakarusa (near Elkhart), is a member of the St. Paul, Minn., firm of Jeff Anderson & Associates, P.A., a team of lawyers that has climbed to national prominence during the past two decades as advocates for plaintiffs in child sex abuse cases, many involving Catholic priests.

In June, a U.S. District Judge in Portland, Ore., ruled that Anderson's firm could include the Vatican as a defendant in a sex abuse case involving a now-deceased priest. It was the first such decision in the United States.

Born in Indianapolis, Mercer is a partner at Wood Tuohy Gleason Mercer & Herrin, P.C., in the state capital. His areas of expertise are health-care law, employment and personnel law. He helped develop his firm's policies for handling claims of sexual misconduct for institutional clients such as hospitals, schools, churches and summer camps.

Mercer is the lead counsel for the Archdiocese of Indianapolis on all cases involving allegations of abuse by archdiocesan priests or church employees. He has represented the Archdiocese since 1986.

Mercer received his undergraduate and law degrees from Indiana University. Noaker graduated from Taylor University and got his law degree at St. Louis University. Both men are Catholics, but Noaker said he no longer practices the faith.

The last time the two attorneys met face-to-face was a few months ago at Mercer's Monument Circle office to discuss discovery issues in the case of former priest Harry E. Monroe. The session came shortly after a Clark County Superior Court judge threw out the complaints of 22 men — not represented by Noaker — who alleged sex abuse as minors by another Indianapolis archdiocesan priest.

The statute of limitations for prosecuting such crimes had run out, the judge ruled.

"The first thing Jay Mercer said to me when he saw me was, 'I see we won down in Jeffersonville,' " Noaker said.

In a series of e-mail answers to submitted questions, Mercer said, "I do not measure the cases I handle on behalf of the Archdiocese in terms of wins or losses. No one wins when a child has been subject to sexual abuse, especially when the adult abuser is a parent, teacher, relative or church leader."

Asked about a quote attributed to him in a July 30 Indianapolis Star story about Monroe — "A win is a win." — Mercer said it was taken out of context and the reporter had "phrased his question to me in terms of a 'win.' " He repeated that wins and losses are not his measurement, "certainly not consistent with my philosophy and not consistent with the approach taken thus far."

Thursday, Noaker made his second trip of the summer to Terre Haute, this time to file the 13th Indiana civil complaint against Monroe and the Archdiocese.

"John Doe CD" joined "John Doe WC," who filed in Vigo County Superior Court in June. Both men allege sexual abuse by Monroe when the plaintiffs were schoolboys in St. Patrick's parish. Both accuse the Archdiocese of ignoring previous complaints of sexual misconduct and assigning Monroe to St. Pat's, where he served as youth minister.

According to the Archdiocese, Monroe was removed from the rolls of functioning priests in 1984, about 10 years after his ordination. He had served in seven parishes.

A few hours before Noaker's Vigo County stop, the attorney conducted a news conference at the City-County Building in downtown Indianapolis to announce an uncommon action: He was turning over copies of a 129-page investigative report on Monroe to eight county prosecutors in the state.

"My investigator was a special agent with the FBI for 30 years, then worked for the U.S. Attorney. He's uncovered substantial material that I believe can be used for criminal prosecution of Monroe," Noaker said.

In a Terre Haute news conference that mirrored the Indianapolis event, Noaker told assembled media he had taken the unusual step because "Father Harry Monroe is a sexual predator who needs to be in jail … My clients' biggest concern, by far, is to protect other children."

Help for the victims: Minnesota attorney Patrick Noaker addresses the media Thursday in front of the City-County Building at Indianapolis concerning allegations of sexual abuse of schoolboys by former priest Harry Monroe. Noaker has turned over copies of a 129-page investigative report on Monroe to eight county prosecutors in the state, encouraging them to pursue criminal charges against Monroe. Tribune-Star / Joseph C. Garza [scanned from print edition]

Noaker said he was hopeful that possible criminal prosecution would not be derailed by a statute of limitations ruling because Monroe had left Indiana in 1984. That move, according to a previous case, "Roberts v. State," would freeze the statute from running and allow alleged victims to file complaints after the age of 31, the state's maximum age for reporting child sex abuse allegations.

Trail of pain: The map of Indiana that Minnesota attorney Patrick Noaker presented at his press conference Thursday in Indianapolis and Terre Haute. Each highlighted county is where former priest Harry Monroe allegedly sexually abused boys. Tribune-Star / Joseph C. Garza [scanned from print edition]

Archdiocese officials have declined to comment on the Monroe case, specifically, but Mercer answered general questions about defending such cases. He asked for an e-mail format because he said he was involved in a trial and not readily available for a telephone interview.

Mercer said he has "great empathy for the victims of childhood abuse and their families. I work very hard to remain compassionate and treat each of the individuals presenting claims in these lawsuits with respect." He said Noaker and his Bloomington associate, Eric Koch, would vouch for his sensitivity during depositions.

"They are nice and pleasant," Noaker said of the Archdiocese's lawyers. "Jay Mercer is a fine lawyer on a daily interactive basis. He just doesn't seem to understand the actions he takes in court are hurtful to sex abuse victims. They are nice and pleasant in deposition, then they try to get everything thrown out" on technicalities such as statute limitations and priest-confessor privilege. "To the victims, it's like questioning their credibility, it appears the church doesn't care."

Noaker said the choice by church officials' to raise such defenses makes their offers of help for alleged victims "empty."

"Because, in court, they are saying, 'We aren't going to help you. In fact, we are going to crush you if necessary.' [Mercer's] client doesn't seem to understand that it doesn't matter when a kid was raped, he was raped. They're trying to treat these cases like they are a commercial litigation claim."

Greg Otolski, a spokesman for the Archdiocese, said using such tools as the statute of limitations "aren't technicalities, that's the law. [Noaker] wants us not to follow what the law is."

Mercer was asked if he had received criticism from people other than plaintiffs' attorneys for using tactics that keep the cases from being decided in court. He also was asked if it is unrealistic or unfair for people to expect the Catholic Church to behave differently from any other person or entity who wants to avoid a trial and possibly the loss of substantial assets.

Mercer replied:

"As a lawyer I have taken an oath to uphold the laws of the State of Indiana and represent my clients 'zealously.' If I did not assert the defenses that are legally applicable to the case, I believe that I would not be upholding my responsibilities, not only to my client but also [as] a member of the bar sworn to uphold the laws.

"The Archdiocese of Indianapolis is expected by its parishioners to be good stewards of the money entrusted to it. These funds are given in support of educational, charitable and spiritual works that are provided to Catholics and non-Catholics alike. In addition, the Archdiocese uses these funds to provide for its victim assistance care and prevention services: background checks, 'Protecting God's Children,' etc. If the Archdiocese did not utilize valid legal defenses to protect these resources in court, its ability to continue essential ministries could be greatly limited."

Thursday, Noaker, who worked as a public defender in Missouri before joining Anderson & Associates, said, "The Archdiocese says it wants to help people who were abused by priests. I hope that means they'll do what I've done and turn over their files on Monroe to public prosecutors."

Otolski of the Archdiocese said the church already had turned over pertinent material.

"We're turning over everything through discovery," he said of the fact-finding process that accompanies each case as it winds through the legal system.

Of the future, Noaker said more cases against Monroe will be filed, but he added: "I think I could get out of this work if the church started acting like human beings instead of corporate bosses."

Stephanie Salter can be reached at (812) 231-4229 or stephanie.salter@tribstar.com.