Did Justice Prosser Shrug off Accused Priest?, by Pat Schneider, Capital Times, Febriary 4, 2008

Did Justice Prosser Shrug off Accused Priest?

By Pat Schneider
Capital Times
Febriary 4, 2008

http://www.madison.com/tct/mad/topstories/270864

Did Wisconsin Supreme Court Justice David Prosser decline to prosecute a priest accused of molesting two brothers in the 1970s when he was district attorney of Outagamie County?

Prosser isn't talking, saying through a spokesman that he will not comment on the case of defrocked priest John Patrick Feeney -- who was tried and convicted nearly three decades later -- because of possible cases that could come before the high court.

One former state Supreme Court justice says that Prosser is right to keep quiet and that only he can decide whether past involvement with a priest abuse case would prejudice him, but one of the victims says he should comment, and the state head of an advocacy group for priest abuse victims says the revelations are troubling.

Prosser, appointed to the Supreme Court by former Gov. Tommy Thompson in 1998 and elected to a 10-year term in 2001, joined the court after a series of landmark decisions that erected a barrier to lawsuits against the Catholic Church by adult victims of childhood sexual assault by clergy. He has sometimes sided with decisions that have limited the ability of plaintiffs to sue the church and sometimes sided with positions that have made more lawsuits possible.

Did Justice Prosser shrug off accused priest?
Did Wisconsin Supreme Court Justice David Prosser decline to prosecute a priest accused of molesting two brothers in the 1970s when he was district attorney of Outagamie County? Prosser isn't talking, saying through a spokesman that he will not comment on the case of defrocked priest John Patrick Feeney -- who was tried and convicted nearly three decades later -- because of possible cases that could come before the high court.

In 2005, as the priest abuse scandal rocked the nation and the church in other states paid out million-dollar settlements, Prosser wrote a majority decision that barred a lawsuit against the Archdiocese of Milwaukee because the statute of limitations had expired. In that case, Justice Ann Walsh Bradley admonished the majority for not taking up the larger issue of whether the First Amendment bars lawsuits against the church. But Prosser joined with the majority last year in a case that opened the door to lawsuits against churches with sexually abusive clergy by means of allegations of fraud.

The court has agreed to hear two cases this year involving how the statute of limitations should be applied to priests accused of molesting children many years ago.

Feeney case

Evidence about Prosser's connection to the Feeney case came to light in recent weeks through the work of the advocacy group Survivors Network of Those Abused by Priests.

Brothers Todd and Troy Merryfield, and their mother, Sharon Merryfield, said in separate recent interviews with The Capital Times that Prosser shrugged off a formal complaint against Feeney in 1978.

All three recall Prosser sitting in the living room of the family's Freedom home (between Appleton and Green Bay) and telling them that he was not willing to prosecute the case.

"He said he didn't want to put a couple of kids on the stand, and asked who would believe a couple of kids over a Catholic priest," said Todd Merryfield, now 43, of Cedarburg.

Given that Feeney's brother, Joe Feeney, was a well-known tenor featured on the Lawrence Welk show, Prosser said, a prosecution would attract a lot of media attention. "He said it would be very embarrassing," said Troy Merryfield, now 42, of Virginia.

Sharon Merryfield, who was acquainted with Prosser from their school days, recalled that "we were pretty upset."

It wasn't just the Catholic Church that would not act against pedophile priests, it was law enforcement too, said Sharon Merryfield, who now lives in Texas. "Who else could we turn to? What else could we do? Nobody was on our side."

The Merryfield brothers took the witness stand in 2004 to help convict Feeney, after Vincent Biskupic, then district attorney of Outagamie County, brought charges. Feeney was convicted by a jury of three counts of first-degree sexual assault of a child and one count of second-degree sexual assault of a child, and sentenced to 15 years in prison. The case is on appeal.

Sharon Merryfield recalled that when she complained to church officials that Feeney had molested her sons at the family home, they promised he would be removed from ministry where he had access to children.

But the Merryfield brothers filed a lawsuit early this year, charging that the Diocese of Green Bay knew before they were molested that Feeney was abusing children, and shuffled him from assignment to assignment to keep his propensities secret, putting them and other eventual victims at risk.

Among evidence produced by the Merryfields are a 1973 letter to Feeney from Bishop Aloysius Wycislo ordering Feeney to leave an assignment in De Pere within three months for unspecified reasons, and a 1983 letter in which Wycislo offers Feeney the option of getting treatment or finding an out-of-state bishop who will take him on to work in his diocese. In the 1983 letter, Wycislo remarks: "Time and time again I have been advised by civil servants, specifically the attorney general, that unless the diocese promised to provide treatment for you, you would be prosecuted."

Bronson La Follette, who was state attorney general in 1983, said in a recent interview that he recalls no such discussions with church officials.

Feeney moved to Las Vegas and worked in at least one church there. An alleged victim in Nevada has filed a lawsuit charging childhood abuse by Feeney.

'I'd shut my mouth'

Troy Merryfield thinks that Prosser should disqualify himself from any clergy sex-abuse cases that come before the court. "If I were him, I'd shut my mouth and recuse myself," Merryfield said.

Former state Supreme Court Justice Janine Geske agrees Prosser is wise not to comment on the case. She says whether he should recuse himself on any case before the court is a decision only Prosser can make.

Assuming he did decline to prosecute Feeney, "it's his personal call on whether he can be fair and impartial," Geske said. Any assumptions about his opinions drawn from a decision not to prosecute a priest are irrelevant, she added.

Geske offered the analogy of a justice who is against the death penalty (which Wisconsin has not had for more than a century) being called to sit on a death penalty case.

"If they personally felt they could not sit fairly on the case, then they should recuse themselves. "That's a personal call on where they stand on the issue."

Peter Isely, Midwest coordinator for Survivors Network of Those Abused by Priests, said he isn't sure if he would like to see Prosser recuse himself from the clergy sex abuse cases.

"We've never been in this situation before," he said, but added that he is troubled by the revelation regarding Prosser on the heels of reports by the Milwaukee Journal-Sentinel last week that former Milwaukee County District Attorney E. Michael McCann was approached by the Milwaukee Archdiocese in 1983 about what to do about an unnamed priest's record of sex abuse.

Documents released in connection with another lawsuit indicated that McCann advised church officials to take the priest out of the ministry for about five years, and if there were no further complaints, to perhaps give him another chance. McCann said he was not told of any criminal activity at the time.

"As a victim, it's very distressing that victims who did come forward literally did not have a prayer when it came to justice," Isely said of the evidence of law enforcement officials not pressing charges on evidence of priest sexual abuse.

As for Prosser, Isely said he wonders what conversations he had with church officials, and if he knew how Feeney went on to abuse after he declined to prosecute him. "He's got to be just devastated to learn about this," Isely said.

Contact: pschneider@madison.com