What can Louisiana AG Landry do about statewide clergy abuse? Experts, advocates weigh in

By John Simerman
Advocate
September 16, 2018

https://www.theadvocate.com/baton_rouge/news/article_36c5c112-b874-11e8-8859-a384f099e6be.html

In this file photo, La. Attorney General Jeff Landry speaks in Baton Rouge in March 2018.

Louisiana Attorney General Jeff Landry pledged last week to help root out sex abuse by Catholic clergy wherever it appears.

He’s just not about to turn the church over the spit to find it, given what he said is his limited authority under Louisiana law and what he described as the perils of “smearing the church” without a specific criminal allegation.

Landry’s decisive rejection of a broader investigation into how the state’s seven Catholic dioceses have dealt with allegations of priestly abuse came as his counterparts elsewhere are lining up to do just that.

As of Friday, eight attorneys general in states as divergent as New Mexico and New York had announced broad investigations into sex abuse in the Catholic Church, prodded by an explosive report released late last month by a statewide grand jury in Pennsylvania.

They run from New Jersey, where about a third of residents are Catholic, to West Virginia, which has a 6 percent Catholic population. Last week, Pope Francis ordered an investigation into allegations that a West Virginia bishop, Michael Bransfield, sexually harassed adults.

In Louisiana, about one in four residents is Catholic, placing it among the dozen most heavily Catholic states.

In most of those eight states, Catholic leaders have pledged to cooperate with requests for church records, whether voluntarily or through the subpoena process.

The Pennsylvania report once again trained an unflattering spotlight on a church that is facing a new wave of troubling allegations after struggling for years and paying hefty sums to deal with the sins of clergy members who preyed on victims or else sought to conceal allegations of abuse by others.

Advocates for clergy abuse victims chided Landry for what they describe as a myopic take on his role as Louisiana’s top lawman. But legal experts are divided over what more he could do with his authority, if he wanted to.

Landry, himself a Catholic, pointed to a state law that bars him from prosecuting criminal acts unless the local district attorney first recuses himself or invites the attorney general to take over a case. He also said he hasn’t received any complaints of clergy abuse in his two-plus years in office, and therefore has nothing to investigate or prosecute.

“And smearing the church and its clergy without specific complaints of criminal acts is irresponsible,” Landry wrote last week in a tart op-ed, bristling at the notion that he would turn a blind eye to child abuse. Landry said he would eagerly assist the State Police or local district attorneys to bring pedophile priests to justice.

His statement about smearing "would be true for anyone or any group," said his spokeswoman, Ruth Wisher.

'He's right on this'
Loyola law school professor Dane Ciolino said the state’s powerful district attorneys have succeeded in limiting the attorney general’s powers in Louisiana, more so than in most other states. He described Louisiana as "on the end of the spectrum where local DAs enjoy a great deal of exclusive power and autonomy."

As for Landry, “I think he’s right on this,” Ciolino said. “He doesn’t have any ability to prosecute anybody unless there’s a recusal of a DA in a local judicial district or if a DA specifically asks for assistance.”

Any attempt by Landry to investigate the church or clergy abuse on his own would be a stretch, Ciolino said. He also agreed with Landry that Louisiana State Police are better equipped than his office to investigate complaints of clergy sex abuse.

Others, though, say Landry dumped the idea of a statewide probe without seeming to give it much consideration.

“If he wanted to do it, he could do it,” said Timothy Lennon, president of the Survivors Network of those Abused by Priests, or SNAP. “This whole thing, dancing around the legalities, is sidestepping the question of the commitment of someone to jump in and protect children. His argument is bogus.”

Unlike in Pennsylvania, the attorney general in Louisiana has no authority to convene a statewide grand jury that could produce the kind of sweeping report that sent shock waves across the country last month, despite the scant few indictments that came with it.

“It’s a huge difference in Louisiana. The grand jury in Louisiana is not a moral reporting authority,” said David Caldwell, who headed the attorney general’s criminal division under his father, former Attorney General Buddy Caldwell, who lost to Landry in a bitter election three years ago. “By law, the grand jury cannot make a comment on public morals. They can’t issue a report.”

But David Caldwell and others pointed out that there are ways a Louisiana attorney general could spark a broader investigation if he wanted to.

On the criminal side, Landry could do what his counterparts in other states have done, teaming with local district attorneys to expand a particular criminal investigation into a wider probe that could involve possible cover-ups, Caldwell said. The attorney general can directly investigate complaints, up through an arrest, but can't prosecute or convene a grand jury independently of a local DA, Caldwell said.

“You have to have some allegation, some complaint of some crime,” Caldwell said, and then “you could take it as far as it goes.

"Look at where (the investigation of former St. Bernard Parish President Dave) Peralta took us. It started out as a sex abuse case, but it turned into misuse of political funds, gambling, all kinds of things.”

'Creative legal strategy'
Some legal scholars see a possible model in New York, where the state's attorney general also lacks the authority to seat a statewide grand jury.

New York’s attorney general, Barbara Underwood, nevertheless launched a sweeping probe of the Catholic church last week, issuing broad subpoenas for documents to all eight of the state’s dioceses in her role as the state’s overseer of charities, according to news accounts.

It was the first bid to use an attorney general’s civil law powers to issue subpoenas in the widening scandal, a "creative legal strategy" that may serve as a template for other states, said Paul Nolette, author of "Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America."

Attorneys general have often deployed those powers in recent years, notably in litigation against big tobacco companies and the pharmaceutical industry, said Nolette, a political science professor at Marquette University.

“Every AG, and that includes Louisiana, has some authority to get involved in this issue,” Nolette said. “There’s a whole heck of a lot AGs can do on the civil side in order to get information out.”

Essentially, those types of investigations fall under the rubric of fraud, which state attorney generals can construe broadly, he said.

“In some ways, fraud becomes a magic word and it becomes what the prosecutor says it is. That can be the hook for a broader civil investigation,” he added.

“One thing that joins all AGs together is that they have broad civil law authority. If an AG says, 'There’s absolutely nothing we could do; our authority is limited,' I would call that a cop-out. If you look at the full arsenal of tools at the disposal of an AG, there’s a lot more.”

Part of that arsenal is the "bully pulpit," which has encouraged cooperation from archdioceses in some states, Nolette said.

'Snowballing quickly'
The Pennsylvania report exposed in grim detail what the grand jury described as credible allegations of abuse involving more than 1,000 children at the hands of over 300 "predator priests." The scale of criminality and church enabling of it described in the nearly 900-page report is exponentially greater than what had previously been revealed publicly about clergy abuse in those dioceses.

"We believe that the real number — of children whose records were lost, or who were afraid ever to come forward — is in the thousands," the report said.

Pennsylvania is among 16 states that have statewide grand juries. Of that group, still fewer allow the grand jury to issue reports, said James Tierney, a Harvard University law school lecturer who directed the National State Attorney General Program until 2016.

Several dozen instances of sexual abuse by Catholic clergy in Louisiana have been exposed over the years.

Revelations that a Lafayette priest, Gilbert Gauthe, molested scores of children while church leaders shuttled him from one Acadiana church to the next in the 1970s were among the earliest to inspire national headlines, horror and scrutiny of church practices.

In 2004, Bishop Michael Jarrell of the Diocese of Lafayette disclosed that 123 victims molested by 15 diocesan priests had received $24.4 million, almost all of it paid by insurance companies.

The actual toll of victims may be far higher, regardless of where you look, judging by how many new and sordid details came out in the Pennsylvania report, said Lennon, the SNAP president.

Nolette, the Marquette professor, anticipates that attorneys general will soon begin to collaborate on a multiple-state investigation that could put AGs like Landry in a quandary.

“This is snowballing quickly across the states,” he said. “If and when a true multi-state investigation occurs, that’s going to put pressure on all the other AGs to join. If he’s resistant now, it’s going to be a lot harder in the future to stay out of it.”

Other attorneys general who have jumped in to investigate clergy abuse in their states have set up hotlines to invite complaints by victims.

Landry’s office has no hotline specifically for clergy abuse victims, but Wisher, his spokeswoman, said people can lodge complaints with the office by calling (800) 256-4506.