Did the Diocese of Monterey Fail to Act against an Accused Priest, or Were They Praying the Story Would Go Away?
By Mary Duan and Sara Rubin
At the Diocese of Monterey, they have a codeword for the case of Edward Fitz-Henry, a former priest accused of molesting boys in several parishes over a number of decades. They call it “Primrose.” It’s a beautiful flower, bizarrely representing an ugly blight on the diocese’s history. But Primrose, the diocese maintains, is over: Edward Fitz-Henry was “laicized,” or stripped of his duties and removed from the priesthood, in 2013. The paperwork, Fitz-Henry says, came through from Rome just this year. He walked away with an unspecified cash settlement after he sued the diocese for failing to protect him and for revealing aspects of his private psychiatric history. The diocese admits they found “credible” an allegation dating back nearly 25 years, that Fitz-Henry behaved inappropriately with a boy at the Mission San Carlos School in 1990, when Fitz-Henry was a priest there and had grown close to the boy’s family. There was tickling into submission, extended hugging and arm stroking and wrestling that ended with the priest’s crotch in the boy’s face. When the boy’s sister witnessed some of it, she told her mother something weird was going on and the mother agreed. The mother complained about it to her bishop, extracting a promise that Fitz-Henry would get help and that he would never be allowed around children again. The public already knows all of that. It came to light in 2011, in stories in the Monterey County Weekly and other media in the county, when a 21-year-old man filed a police report – and then filed a lawsuit – claiming that in 2005, while a priest at Madonna del Sasso, Fitz-Henry assaulted him. At the time, the diocese said it did not find the 2005 allegations credible – their word for saying they didn’t believe him. The 1990 allegations, though, they found to be credible. Now according to documents obtained by the Weekly after a two-and-a-half-year legal battle with the Diocese of Monterey, the diocese’s own well-paid investigator believes sexual activity took place between Fitz-Henry and the 21-year-old man in 2005. He’s just not sure what exactly what happened, or if the young man was underage at the time. But that wasn’t all the diocese’s investigator reports. He says there may have been at least three, and possibly six, other “potential victims,” according to the documents obtained. It’s not clear when the alleged and unspecified acts involving those potential victims occurred, nor is it clear if the diocese, now aware of their potential existence, has reached out to them to gather more information, and offer counseling or asked law enforcement to investigate the allegations. The information is found in a 188-page deposition transcript of that diocese investigator, former veteran Salinas Police Sgt. Don Cline. The diocese has declined to comment for this story. In a two-page letter, diocese official Tom Riordan writes: “This story will do nothing but confuse members of the public and make them believe that there is another allegation against a man who is no longer a priest and that the diocese is acting in a way that is inconsistent with its policies, its ethics or its morals. Nothing could be further from the truth and to imply otherwise is unfair, unethical and an abuse of the power of the press. “There is no new story and so the diocese declines further comment,” writes Riordan, whose full title is vicar for temporalities and administration and finance officer. (The full letter can be viewed online at montereycountyweekly.com/fitzhenry.) Neither the contents of Cline’s deposition nor many other documents in the 2011 case have ever been made public. For years, they remained under seal as the diocese fought, at great financial expense to both them and the Weekly, to keep them that way. The new story is found in those nearly 1,350 pages – it’s a story of a young man whose victimhood has never been acknowledged. It’s the story of other alleged victims who may have never received an apology or an offer of therapy from the diocese. It’s also the story of the former priest, an affable and intelligent Irishman named Edward Fitz-Henry, who now lives quietly in Hollister, worries about finding a job and still has numerous supporters from his time as a priest. He also maintains his innocence, and believes the Diocese of Monterey cut him loose as quickly as it could rather than defend him against an allegation he says was brought by a troubled kid looking to cash in. Here, according to those documents obtained by the Weekly, is what happened. John “RJ” Doe and Happy People “The allegation against Fr. Ed (thank you for not trying to cover this up) does not jive (sic) with priest we know. But even if it were so, our understanding is that some 20 years have passed since the alleged incident and with no other voice raised against him, we believe in Fr. Ed. We trust him and have no qualm with him being around our children.” – Letter to Diocese of Monterey Bishop Richard Garcia from a parishioner following Rev. Edward Fitz-Henry’s suspension from the ministry in 2011. From the start, it was a troubled, troubling case involving a troubled, troubling kid. On February 1, 2011, the young man – we’ll call John “RJ” Doe, as he is identified in court papers – walked into the Salinas Police Department accompanied by an attorney and asked to speak to a detective. He wanted to say the words out loud – that a priest sexually assaulted him – and he wanted to say it to someone who was willing and able to do something about it. Months earlier, he had tried to report it, to another priest in the Diocese of Monterey, but it had gone nowhere. That priest, while mandated by law to report any abuse allegations involving children to the police, figured since the guy already had an attorney, he didn’t have to take action. That priest, Fr. Nicholas Milich, went to the bishop with concerns about Fitz-Henry’s emotional health, and said he thought Fitz-Henry might benefit from counseling after his mother had died, but never came out and said there was an allegation of sexual abuse. Doe claimed the assaults had taken place years before, starting in 2005, when he was 15 and trying to figure out where he stood in life. His father had walked out on the family about 10 years earlier. While his mother worked to support her two sons, the boys spent a lot of time alone. Doe passed Madonna del Sasso Church in Salinas regularly as he went back and forth from the public high school he attended and the school where he participated in a junior ROTC program. He recounted in an earlier interview with the Weekly that he got it into his head: There are happy people there, living fulfilling lives. They’re not alone. It was a place where he could belong. And for a short time, starting in 2004, it became the place where he did belong. He joined the church youth group and the choir. A talented flautist, he was asked to play regularly. He thought about becoming a priest. He thought about working in law enforcement. He thought about whether or not he might be gay. But for Doe, belonging would come with a price. He told the police that just a few months after he started attending Madonna del Sasso, Fitz-Henry allegedly tried to coerce him into performing a sex act in the sacristy restroom. Doe also claimed that on other occasions, the priest had given him massages and extended hugs that Fitz-Henry called “God hugs.” During those hugs, Doe claimed, the priest placed his hands down Doe’s pants to rub his bare buttocks. He purportedly questioned the boy during confession about his sexual habits, and encouraged him to experiment, telling him if he had homosexual urges, he could teach him how to act on them. The assault allegations were also outlined in a letter that Doe’s attorney, Vince Finaldi of the Irvine-based firm Manly, Stewart & Finaldi, sent to Diocese of Monterey attorney Paul Gaspari, of the San Francisco-based firm Weintraub & Tobin. The Salinas Police Department forwarded Doe’s complaint to the Monterey County District Attorney’s office for possible prosecution on Oct. 26, 2011. A week later, then-Deputy District Attorney Stephanie Hulsey, who’s now a Monterey County Superior Court judge, rejected the case. It meant the District Attorney declined to prosecute. Doe was on probation; in 2008 and again in 2010, he pleaded no contest to impersonating a police officer while working as a security guard at an apartment complex. He wasn’t necessarily the most credible of witnesses. Fitz-Henry, meanwhile, was a chaplain for the San Benito County Sheriff’s Office, a chaplain or a quasi-chaplain for Salinas Police and counted numerous law enforcement officers as his friends. In the background, the Diocese of Monterey ran its own investigation, convening what it called an independent review board to look into Doe’s allegations. The investigation was led by Don Cline. After Cline completed his investigation, and the review board went over the findings, the diocese announced it couldn’t find Doe’s allegations credible. The review board, however, said it believed Fitz-Henry, while a priest at Mission San Carlos in Monterey, had engaged in misconduct with a Carmel Valley boy in 1990. The boy’s mother had complained about it two years later, when Fitz-Henry was to be assigned to Our Lady of Mt. Carmel in Carmel Valley, and Fitz-Henry was shuffled off for three months to a retreat center for troubled priests in New Mexico. The mother complained about it again, in 2007, when she found out the diocese had returned Fitz-Henry to a parish where he could be around children – something the diocese promised her wouldn’t happen again when she first complained about Fitz-Henry’s behavior with her son 15 years earlier. The diocese used that 1990 case as the reason to remove Fitz-Henry from his parish in 2011. His removal from the priesthood would come two years later; he agreed to it after suing the diocese and receiving a settlement. Discovery and the “Truth” “These accusations are absurd and appear to be just another attempt to take advantage of the church in its current state of scandal correction. In this climate, it seems that all priests are vulnerable to this sort of thing and need to be protected by the church… In this ‘guilty-before-proven-innocent’ environment, all priests must be protected by the church or we will be in danger of losing them all in the future.” – Letter from an unidentified parishioner to Bishop Richard Garcia following Edward Fitz-Henry’s suspension from the ministry in 2011. A few weeks after Doe and his attorney filed their report with Salinas Police, and after the diocese had already announced it didn’t find his abuse claims credible, Doe sued the diocese and Fitz-Henry in Monterey County Superior Court. The case was filed on Feb. 15, 2011. Within two months, Fitz-Henry’s attorney Daniel De Vries, who’s based in San Juan Bautista, requested Judge Thomas Wills issue a protective order to prevent documents in the case from being released to the public. The diocese filed a motion supporting that request. In June 2011, Wills ruled in favor of the protective order. It meant that all documents in the case were to be kept confidential. If presented to the court, the documents had to be filed under seal, kept from the public and the media, and that Wills would decide what would be included in the public file, available to anyone who requested to view the file at the Monterey courthouse. As the case proceeded, Finaldi and his firm’s founding partner, John Manly, started deposing witnesses in the case, day-long interviews in a Ryan Ranch office with witnesses under oath, as if they were testifying before a jury. Those hours-long questions and answers, including the stops and starts of conversation, the interruptions, the “ands” and “buts” used as fillers between thoughts, are transcribed into documents hundreds of pages long; those transcripts then become evidence. They deposed Cline and Fitz-Henry. They deposed Nicholas Milich, whom Doe told about Fitz-Henry in 2010. And they deposed Agnes Leonardich, the former head of schools for the Diocese of Monterey, a woman who in 1993 had warned a school principal in San Luis Obispo to keep Fitz-Henry away from altar boys, only to be told to by then-Bishop Sylvester Ryan to mind her own business and let him deal with the priests the way he saw fit. It wasn’t Manly’s first time suing the Roman Catholic Church over sexual abuse. In fact, he’s made a successful and lucrative career of it. Manly, a graduate of the prestigious Catholic high school Mater Dei in Santa Ana, helped force the Diocese of Orange to settle 87 cases alleging sex abuse by church employees in 2004. He also previously sued Mater Dei on behalf of a young man victimized by the school’s principal. As a 2007 Orange County Weekly story described it, Manly, who represented 30 of those Diocese of Orange clients, refused to settle until Orange Bishop Tod D. Brown agreed to release personnel files Manly claimed would prove church officials knowingly shielded pedophiles. And when those documents were released in 2005, Manly was proven correct. The plaintiffs won a $100-million settlement. It was then the largest payout to victims in church history. In all, Manly and his firm have won hundreds of millions of dollars in settlements from Roman Catholic Church cases. Cline’s deposition took place on Aug. 24, 2011, at the offices of Hartsell & Olivieri, a court reporting service on Ragsdale Drive in Monterey. In addition to Cline and Manly, diocese attorney Paul Gaspari was there, along with Fitz-Henry’s co-counsel Christine Breen. So was Pat Wall, a former Benedictine monk whose assignment had been as a “bishop’s man,” sent by bishops to various dioceses to quietly clean up messes, including sex scandals. Wall, who had left the religious life, went to work for Manly. (He’s since gone to work for another firm also well-known for sex abuse cases against Catholic clergy, Anderson & Associates in St. Paul, Minnesota.) Cline retired in 2010, but he was still a reserve officer with the Salinas PD when he began working for the diocese on the Fitz-Henry case. His reserve status meant he had the right to carry a badge and a firearm, and to identify himself as a Salinas police officer. Cline in his deposition says he reached out to the department to let them know he would be working on the case – which the department was supposed to be investigating. He says he promised not to use his status as a reserve officer in his private investigation, and was told by then-Cmdr. Terry Gerhardstein (now a deputy chief) that he could remain as a reserve officer. After Manly’s office sent a letter to then-Salinas Police Chief Louis Fetherolf complaining about the tight connection between Cline and the department, then-Deputy Chief Kelly McMillin, now the city’s chief, asked Cline to resign as a reserve officer. According to Cline’s deposition, McMillin told him he wasn’t accusing him of acting improperly, but said the appearance of impropriety was overwhelming. McMillin told Cline he wasn’t to have contact with any officer involved in the Fitz-Henry investigation. “It was an effort for the department to be able to operate and do their investigation without any cloud of suspicion,” Cline says in the deposition. He adds he didn’t disagree the appearance of impropriety was there. A deposition is something of a verbal dance. There are many stops and starts, questions and objections, apologies and interruptions. And that was the case in Cline’s deposition, as Manly questioned him about Fitz-Henry’s past, Cline’s status with the Salinas Police Department and how he conducted an independent investigation for the diocese. They talked about molestation in general, and how some molesters groom their victims. And then they got to the heart of the matter: Did Cline believe that Doe had been sexually abused by Edward Fitz-Henry? “In terms of it being unlawful to have sex with a minor as an adult, yes,” Cline says. “OK, so you think there was sexual activity between [Doe] and Fitz-Henry?” Manly asks. Cline responds: “I have that opinion, yes.” But then he drops a bizarre bombshell. It would be the first of several to come. “If there was any sexual contact between the two, my opinion, without any evidence to support it, is that it was most likely consensual,” Cline adds. “… There are too many inconsistencies with how he explained things occurred for them to have occurred that way without it being consensual.” Manly asks Cline if he told the diocese he believed Fitz-Henry engaged in sexual activity with Doe, and Cline says, “Not in those words.” He said Diocese attorney Susan Mayer asked him to give his opinion. He told her his opinion was conditional on seeing the police investigation. “So my tentative opinion is that something occurred, but the facts of what occurred are yet to be discovered,” Cline says. He says doesn’t know exactly what happened, or when. At the very end of his deposition, after the attorneys have taken several breaks, Cline suddenly changes his testimony. He says he believes that something happened between the priest and Doe, “most likely of a sexual nature,” but that he wasn’t convinced nor had he seen evidence that it happened while Doe was a minor or at Madonna del Sasso. For a beat, Manly is astonished, and asks if he heard Cline’s earlier testimony correctly. “So are you changing your testimony?” Manly asks him. “Yes,” Cline responds. “Did you speak with your attorney after you gave that testimony today?” Manly asks him. “I did,” Cline says. About 40 seconds later, the deposition ends. The Weekly requested an interview with Cline. He responded that all media requests were being handled by diocese attorney Gaspari. The diocese responded on Oct. 21 with a written statement (available at mcweekly.com/fitzhenry) and in that statement, declined any further requests to talk about the Doe case. They later responded to an email question about Cline’s testimony by saying the paper was sensationalizing and misinterpreting the documents, the same sentiment Gaspari argued before both Monterey County Superior Court Judge Tom Wills and the Sixth District Court of Appeal (see p. 35). Cline spent 255 and a half hours on the investigation, he told Manly, at a rate of $150 an hour, earning approximately $38,325 for his work on the case. Deep Secrets “Please send John Doe away empty handed. It would sully parishioners’ donations to contribute to the further waywardness of an unfortunately misdirected soul more in need of prayers than money… We are also praying for John Doe, for he seems intent on damning his soul.” – Letter to Bishop Richard Garcia from an unidentified parishioner following Edward Fitz-Henry’s suspension from the ministry in 2011. During Cline’s deposition, Manly asked him about the 1990 allegation, and whether there were other potential victims besides the Carmel Valley boy, that boy’s brother and Doe. Cline responds there may be three other “potential” victims and “four other people that I would want to interview for information with that potential in mind.” Cline says he didn’t know the identity of the potential first victim. Finding out was on Cline’s to-do list, though, which Manly read out loud during the deposition: “Determine the identity of the family contacted by the diocese in 1992… the Father allegedly licked/sucked the eyes of their children.” In another instance, Manly asks Cline if he remembers hearing about instances of inappropriate hugging involving Fitz-Henry and two boys at Mission San Juan Bautista; Cline says he had heard of the alleged incident, but that the boys in question were not on the list of potential victims. During a presentation to the diocesan independent review board, Cline offered a slide show with a slide titled “victim history.” One of the slides referred to Doe was titled “victim credibility,” and described his trouble with the law and a family history that included instability and abuse. Cline interviewed six or seven witnesses selected by Doe; all of them, Cline reported, said the young man had trouble separating truth from fantasy. And Cline said he found two other things that went against Doe’s credibility: the fact that Doe maintained contact with Fitz-Henry for some time after the alleged abuse occurred, and that he sought out an attorney before going to the police. Cline doesn’t mention the existence of other victims anywhere else in his deposition and Manly doesn’t question him further on it. But Cline’s report to the independent review board also became part of the documents that had been sealed until the Weekly sought and won access. In that report, Cline describes the 1990 allegation, the one from the Catholic mother whom he and the diocese found credible. In 1990, Fitz-Henry had maintained a friendly relationship with a family of parishioners who lived in Carmel Valley. He taught the family’s two sons at the San Carlos Cathedral in Monterey, and had planned to take them on a camping trip to Arroyo Seco. That relationship abruptly ended after a night that Fitz-Henry had been invited to the family’s home for dinner. He sat down with the older of the two sons to watch TV. The boy, now an adult, was interviewed by Cline in the course of his investigation, and told him what he remembered. He recalled talking with Fitz-Henry about giving up soda for lent, and settling in to the couch next to him to watch TV, then the priest tickling him “to the point of submission,” according to Cline’s report. “As this happened he thought this is not right, this is weird, but this also a priest.” The boy’s older sister, who was 15 or 16 at the time, approached and thought immediately that it was too weird. She turned on her heel and went to tell their mother, who immediately asked Fitz-Henry to leave. He didn’t see the family again. That night, the mother asked her two sons for more detail about Fitz-Henry. How had he been with them? Had he touched them before, and did it make them uncomfortable? What they told her was disturbing. There were times while playing flag football that the priest had straddled them, with his crotch near their faces for 15 or 20 seconds – not excessively long, but long enough to make them remember it decades later when Cline interviewed them. “Long enough that it left an impression, he knew it was not right, was odd behavior, and ‘I was really uncomfortable,’” Cline wrote in his report. What the boys described never involved sexual assault or even taking off clothes. Fitz-Henry had a habit the boys didn’t understand, but that they thought was gross. During football games or friendly wrestling matches, if they were down, he would sometimes put his mouth over their eyes, and would lick or suck their eyeballs. There was another time, at a party at the family’s home, that Fitz-Henry was on an upstairs balcony with the brothers. They told their mom he grabbed them and licked their eyeballs. “It just seemed like the weirdest thing according to Ms. [redacted],” Cline wrote. “She went on to explain how this sounded like a stupid thing for the Fr. to do.” The younger brother viewed the eyeball-licking as “playful torture.” Internet sources widely ascribe it as a sexual behavior or fetish. Around Christmas 2006, the Carmel Valley mom told her now-grown son the Monterey County District Attorney’s office had sent her a letter, asking if her son wanted to pursue charges based on the incidents with Fitz-Henry. The man said “he did not want prosecution, but he wanted to ensure it didn’t happen to any other children or adults,” according to the Cline report. Had the diocese acted more decisively in the 1990s – done more than remove Fitz-Henry from Carmel, send him to the retreat center for troubled priests, then returned him to parish work – Doe would never even have met the priest, says Pat Wall, the former Benedictine monk and bishop’s man. As proof, he points out that the church never even accepted Doe’s complaint as truthful, but did see cause enough to remove Fitz-Henry from the priesthood based on the 1990 allegation alone. “They didn’t laicize him based on complaints by John Doe,” Wall says. “They laicized him based on complaints they already had, sitting in their own archives. “That’s how substantial that evidence was.” Father Fitz-Henry Speaks Out “This particular law firm representing the accuser is well known for seeking out cases against the Catholic Church throughout the country. The only way to stop this kind of action against the Church is to not succumb to cash settlement demands prior to trial that can only be construed as extortion.” – Letter from an unidentified parishioner to Bishop Richard Garcia following Edward Fitz-Henry’s suspension from the ministry in 2011. It’s now more than 25 years after those incidents in Carmel Valley occurred, and four years after Edward Fitz-Henry was visited by diocese officials who told him he had been accused of molestation and had to leave his home at Mission San Juan Bautista immediately. In the first public comments he’s ever made about the case, the 57-year-old Fitz-Henry sat down with the Weekly at his attorney’s office in San Juan Bautista and talked about his life before, and his life now. His accent is still lightly Irish, although he’s now lived in California longer than he ever lived in Dublin, where he was born and where he went to seminary. He still dresses in a somewhat priestly fashion, with a dark sweater and pants, a small gold insignia ring on his pinkie. He was unaware of the testimony Cline gave in his deposition, about the existence of other potential victims, and says he never victimized any children, ever. Nor, he says, did he have any sexual encounters with John Doe. “What [Don Cline] believes has nothing to do with me. It’s totally untrue and there’s no veracity to it whatsoever,” Fitz-Henry says. “If there was any truth to it whatsoever, why didn’t the DA file charges?” He seems in equal measure mystified and mad that the life he knew as a parish priest was pulled out from under him, and that he never got his day in court, something that would have happened if the diocese had fought the Doe allegation. “You mean you want me to relive these things?” Fitz-Henry asks, when asked to talk about the case. “You have to understand, when this happens, it’s like the dark night of the soul. “You’re ministering and things are going well and someone makes an accusation, and the diocese doesn’t support you or back you up,” Fitz-Henry says. “We begged the diocese not to settle this case. It was a lie. He destroyed my life and my ministry and my desire was to challenge it in court and go all the way.” It was late on a Friday night in mid-winter that Fitz-Henry got the phone call that would set into motion a series of events eventually removing him from the church for good. It was Jan. 7, 2011, the day the diocese had received a letter from John Doe’s lawyers, alerting them to Doe’s claims of sexual abuse. Around 8pm, Susan Mayer, the diocese’s attorney, called Fitz-Henry at the San Juan Bautista rectory to say she wanted to have a meeting, that night. Within an hour, she showed up with Tom Riordan, and the three sat down on couches in the rectory living room for about 20 minutes. They told him an investigation would begin, and that he was suspended during the investigation. “They said, ‘You have to leave the parish tonight,’ and I said ‘No, maybe tomorrow,’” he says. He left early the next morning for Mission San Antonio in Jolon, a remote location on Fort Hunter Liggett. “I was in shock at this, but I believed that this was the proper course and that I had no option,” Fitz-Henry later said in a deposition. Mayer and Riordan told him what was happening, Fitz-Henry said, but they never confronted him about the facts. In Manly’s deposition of Fitz-Henry, he asked: “Has anybody from the diocese, Father, ever asked you if you sexually abused [John Doe]?” His reply: “No.” There were other confrontations in Fitz-Henry’s history. There was a 2007 meeting that Bishop Garcia called with Fitz-Henry and the diocese attorney, Susan Mayer. The bishop had received a letter from the mother of the two boys who alleged sexual misconduct by Fitz-Henry in 1990. “We were assured that the priest would never be placed in an assignment where he would be around children again… Now that he is pastor at Madonna Del Sasso, he clearly can be in daily contact with children. This has been heavy on my heart, sitting back knowing what happened with our son. “My family feels betrayed by the diocese,” she went on. “Our concerns are very strong, and I cannot be silent any longer.” The bishop responded about a month later and wrote, “I am looking into the issues you raise with regard to Fr. Ed. Please be assured that I take what you say very seriously.” Bishop Garcia did follow through, to some extent. He called a meeting with Fitz-Henry and Mayer, and three months later, Fitz-Henry was moved from Madonna to Mission San Juan Bautista, also in the Diocese of Monterey. Children and families were also part of that parish. In the deposition, Manly asked Fitz-Henry if the that letter was the reason for the transfer. “That probably was part of the reason,” Fitz-Henry said. “The attitude was, well, maybe the – better not – we’ll placate, you’ll be happy and everybody will be happy.” In his interview with the Weekly, Fitz-Henry maintains his behavior with the boys was misconstrued. After he went to counseling, he says, Bishop Sylvester Ryan returned him to ministry without restriction. And it taught him, he says, not to get into situations where his behavior could be misconstrued again. “I was afraid, because how can you defend yourself against what’s indefensible?” Fitz-Henry says. “I would refuse to allow myself to be in a position where I could be accused, having learned a hard lesson.” He says his friendship with the Carmel Valley boy was encouraged by a teacher who said the kid needed attention. “I learned from it I didn’t want to put myself in a situation where someone could misinterpret or misconstrue a friendship with someone who was underage,” Fitz-Henry says. “I lived my life as a celibate priest and I was very happy for the next 20 years until the call from Susan Mayer that night.” Before he was suspended Jan. 7, there were some less-happy confrontations. One was a confrontation with John Doe himself, on Halloween 2010, shortly after he pleaded no contest to impersonating a police officer. John Doe returned to Latin mass to sing in the choir that day, and ended up in a shouting confrontation with Fitz-Henry outside the front door of the church. Fitz-Henry detailed the bizarre encounter later that day in an email to Sister Patricia Murtagh, chancellor of the diocese. Fitz-Henry hadn’t expected to see him, believing John Doe had become a Mormon. Fitz-Henry believed he was required to be fingerprinted to be allowed back in the choir, and asked him if he’d come through to get that done. “He addressed me Fitz-Henry (no Father),” he wrote in the email account to Murtagh. “He borrowed money from parishioners but never returned it. It seemed he was a thief and a liar. He talked away and left a phone message with his lawyer regarding a lawsuit against the diocese??? Then he returned and said there was a group of people accusing me of something done regarding children 20 years ago.” He asks Murtagh if she cleared him to participate in Latin mass, and if she knew whether Doe reconciled with the church. He asks this: “More importantly have you been approached by anyone regarding any behavior on my part 20 years ago?” It would be more than two months until an official response from the diocese and the Jan. 7 meeting in the rectory living room, but there was another confrontation between Fitz-Henry and Fr. Nicholas Milich. Milich led San Juan’s Latin mass, a tradition which has largely been traded out for a more modern service. And he told Manly in a deposition that Fitz-Henry threatened to take it away. On Nov. 1 or 2, just a day or two after Fitz-Henry’s encounter with John Doe, Fitz-Henry – “quite angry” – confronted his fellow priest. He told Milich that John Doe was accusing him of sexual abuse, and denied it, according to the transcript of Milich’s deposition. “I was very uneasy by the whole tone of the thing,” Milich said. “[Fitz-Henry] said, ‘If something like this should happen, there will be consequences for the Latin mass community.’” Milich himself was temporarily suspended from ministry because he failed to report the allegation from John Doe. Milich told Manly he was never sure whether John Doe’s allegations were true, though he doubted the young man’s credibility. “I’ve had up and down thoughts about this whole – whether I – I don’t know what the truth is,” he said. But in Cline’s report, Milich was clear on his recollection of that confrontation with a fuming Fitz-Henry. From Cline’s write-up on his interview with Milich: “Fr. Ed appeared frightened to death and claimed strongly to be innocent. Fr. [Milich] said he tried to calm Fr. Ed but instinctively thought, there is something real in this.” The Diocese Asks for Privacy “We understand the process the church is required to follow, but wish to advise you of our belief in Father Ed’s innocence. We have known him for over ten years… and have always found him to be a man of excellent character and with a loving heart… We hope and pray that he will be vindicated. We also pray that he will not lose heart, this type of incident can ruin a person for life.” – Letter from an unidentified parishioner to Bishop Richard Garcia following Edward Fitz-Henry’s suspension from the ministry in 2011. When Monterey County Superior Court Judge Thomas Wills delivered his ruling on the Weekly’s motion to modify the protective order in this case, he was careful to spell out the word “sole” to avoid any confusion with “soul,” a word the public and a court reporter may more closely identify with the Roman Catholic Church. He said he’s carefully weighed both arguments – the Weekly’s, in favor of disclosure, and the diocese’s, in favor of privacy. “It’s not been an easy decision to make,” Wills said. His decision focused on whether the privacy rights of the diocese and Fitz-Henry were sufficient to prevent the public from ever seeing the records officials had produced to Manly and Finaldi in the course of discovery. Wills decided, in the end, for public disclosure. “It’s a much larger organization than just a single individual,” Wills said. “This is not a small congregation meeting in a barn out in Prunedale.” The diocese appealed Wills’ decision. Gaspari argued the release of the documents would have a “chilling effect” on parties involved in litigation when it came to asking the other side to produce documents in the course of discovery. After Wills’ ruling, announced on Dec. 11, 2013, it would be another 19 months until the Sixth District Court of Appeal in San Jose heard oral arguments on July 21, 2015. As the appellant, Gaspari had the first and last word. But the panel of three judges didn’t buy his argument. “When you settled this case, why didn’t you make these documents part of the settlement if it was such a concern?” one judge asked Gaspari. Another judge: “It’s a very circular argument that never gets to the point.” When it was Weekly attorney Roger Myers’ turn to speak, he used just about five of his allotted 20 minutes – very unusual, he says, but it was clear the justices were leaning his way, so he felt he had little persuading to do. “The Court of Appeal made abundantly clear in their questioning they didn’t think there was any merit in the diocese argument that Judge Wills didn’t have authority to do what he did,” Myers says. At one point, one of the judges told Gaspari, “I don’t blame you for trying, but when you say this injunction protected court records, that is not true.” Gaspari made the case in his oral argument that Wills had exceeded his authority, because revising the protective order would open up not just the sealed documents in the court file – documents that included in a publicly available file, but enclosed in manila envelopes – and the deposition transcripts and other records never filed with the court, but gathered by the attorneys in the course of discovery. “We are not dealing with court records, we are dealing with raw discovery,” Gaspari said. “There is no right for the public to access raw discovery.” But the Court of Appeal unanimously agreed with the Weekly that Judge Wills had the right to modify the protective order so that Manly and Finaldi could, if they wanted to, release the discovery. The court’s written unanimous decision, authored by Justice Franklin Elia with Justice Conrad Rushing and Judge Brian Walsh concurring, was released July 31. (The documents were not available until 60 days later; the court allowed for a stay, in the event that there was a further appeal. There was not, and Manly, Stewart & Finaldi agreed to provide select documents from their files to the Weekly; pursuant to Judge Wills’ order, they were first redacted by the law firm to protect identities of witnesses and alleged victims, and to conceal private information like addresses and phone numbers of parishioners.) The appellate court sided with the Weekly, but from an arm’s length. The judges focused on two major questions. First: whether the Weekly had the authority to intervene in the case, and second: whether Monterey County Superior Court Judge Wills had acted improperly or not in changing his own, earlier opinion about keeping the case under seal. The Court of Appeal never actually weighed in on whether the documents belonged in the public eye. On the first point, a procedural one about intervention, the court agreed with the diocese and found that the Weekly failed to meet the statutory criteria to intervene. But in the end, they decided that didn’t matter. In Myers’ words: “They basically said, no harm no foul on the intervention.” That meant the court moved on to the second, more substantive question: whether Wills acted appropriately in modifying the protective order he’d himself agreed to in 2011. “We cannot find an arbitrary or unreasonable exercise of the superior court’s discretion,” Elia wrote. While the appellate judges didn’t weigh in on whether or not they would’ve done what Wills did given the same set of circumstances, they upheld his power to make that call. That’s important, Myers says, because it allows judges to revisit protective orders, and to change them if circumstances are different. “If there’s an issue dealing with public health or safety, the parties shouldn’t be able to keep it confidential forever just because there was a protective order at some point,” Myers says. “Once a case is settled, the risk of a tainted jury goes away.” In court papers, the diocese argued with the Court of Appeal that releasing the documents would expose them to unfair media coverage, long after the facts of the case had been resolved. While those arguments didn’t end up factoring into the legal reasoning, Elia knocked those concerns in the decision. “We cannot presume the inevitability of this scenario,” he wrote. “… And the diocese, should it choose to respond, it [is]well-equipped to repel any statements it believes to be inaccurate or in the nature of unwarranted ‘smear tactics.’” Indelible wounds, Pain and Suffering “We understand (but can’t agree with) the zero-tolerance policy. We feel the pendulum has swung too far the other way and think the Church should be more centered… Justice is not being served when our priests aren’t able to defend themselves before they’re pulled from their parishes with questionable or no proof of wrongdoing. Why do accusers have rights while priests are left to flounder?” – Letter from an unidentified parishioner to Bishop Richard Garcia following Edward FitzHenry’s suspension from the ministry in 2011. That the case of John “RJ” Doe v. Edward Fitz-Henry and the Diocese of Monterey ever settled at all sticks with Fitz-Henry, more so than any allegation he behaved inappropriately with children at any point in his career. He devoted his life to an institution that refused to fight for him when he needed them the most. The financial settlement he struck with the diocese was done with a confidentiality agreement attached. Fitz-Henry won’t disclose the amount involved, but says it’s given him some breathing space while he tries to figure out how to get a job when he’s only ever had one job, and he’s now living in an era where a Google search of his name turns up coverage of his case. “The church teaches you that you’re a priest forever, that it’s an indelible mark on your soul. From a practical application, I will die a priest,” Fitz-Henry says. “But I won’t be functioning as a priest again, ever. “It’s odd because you get ordained and it’s a big ritual… and after 35 years of priesthood it ends with a letter you get in the mail, signed by some poobah in Rome.” John “RJ” Doe now lives in Southern California. The Weekly asked to speak to him through his attorney, Vince Finaldi. Finaldi says Doe considered it, and sat down to compose an email, but was unable to complete the task. Instead, he sat at his keyboard and wept.
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