Judge to Release Records in Child Molestation Lawsuit against Diocese of Monterey

By Virginia Hennessey
Contra Costa Times
December 10, 2013

http://www.contracostatimes.com/news/ci_24694335/judge-release-records-child-molestation-lawsuit-against-diocese

Barring intervention by an appellate court, depositions and other records from the child molestation lawsuit against the Rev. Edward Fitz-Henry and the Diocese of Monterey will be released next month.

Monterey County Judge Thomas Wills made final Monday his tentative ruling that there was no compelling reason to withhold the records. They were previously sealed to avoid tainting the prospective jury pool when the case was still headed for trial. It was ultimately settled with a $500,000 payment to the alleged victim.

Wills stayed his order for 45 days to allow attorneys for Fitz-Henry and the diocese to appeal to the 6th District Court of Appeals. Paul Gaspari, who represents the diocese and Bishop Richard Garcia, said they are "certainly going to look very, very closely" at appealing.

"We are being forced to do the impossible," Gaspari said, "to try this (case) again in the press without the ability to defend ourselves in the press because we are not going to violate" the privacy rights of "individuals who were swept up in this."

The Monterey County Weekly sought to lift the protective order barring release of the records, arguing there was an overriding public interest in knowing what and when the diocese knew about the allegations against Fitz-Henry and what it did to protect its young parishioners and other juveniles in the community.

The newspaper's attorney, Roger Myers, said the Roman Catholic Church settles lawsuits before they reach trial, as it did in this case, to avoid releasing incriminating information.

The motion placed the burden on the church and Fitz-Henry to show good cause why Wills should continue to protect the records. Gaspari argued the release would violate the privacy rights of uninvolved parties, including the diocese. Fitz-Henry's attorney, Daniel De Vries, argued his client had been convicted of nothing, was dismissed as a defendant in the case and ultimately received payments from both the diocese and the claimant in his cross-complaint.

The alleged victim's attorney, Vince Finaldi, argued the records should be released as a matter of public safety. Gaspari objected that he had only agreed to give them to Finaldi in 2012 because Finaldi said he needed them to prepare his case and didn't intend to turn them over to the media.

The fight grows out of a lawsuit by "John R.J. Doe," who claimed Fitz-Henry molested him when he was a 14-year-old altar boy and choir member at Madonna del Sasso Church in Salinas. When the lawsuit was filed in 2011, Fitz-Henry was the popular pastor of Mission San Juan Bautista.

His attorney said Monday that Fitz-Henry voluntarily stepped away from his assignment and counter-sued the diocese after it quickly settled with the plaintiff. He remains a priest without an assignment, and the diocese moved to have him defrocked by the Vatican.

On Monday, Finaldi disputed De Vries' claims that the priest had never been charged or found culpable for child molestation. The diocese, he said, settled the case after its own investigator concluded the victim's claims were credible.

Among the nearly 800 pages of records Wills ordered released are depositions by Fitz-Henry, another diocese priest, its school superintendent and its investigator. Other records include items from Fitz-Henry's personnel file, letters from parishioners and the diocese, and transcripts of interviews with the investigator.

Wills directed the diocese to redact the names of any alleged minor victims, parishioners and church personnel. It was unclear if those redactions would include the names of two prior diocese bishops who Gaspari said are mentioned in the documents.

The judge also ordered blacked out portions of the depositions that would embarrass or harm the privacy of third parties, and barred release of information regarding consensual adult sex and psychotherapy.

The records will include information regarding what actions were reported, the capacity of the reporter, witness or recipient of the information and what actions the recipient took as a result.

Gaspari, the church's attorney, argued there was no overriding public interest because the actions took place 10 years ago and Fitz-Henry is no longer a priest in the diocese. De Vries said he communicates with his client via email and doesn't know where he's living.

Regardless of whether Fitz-Henry is currently a priest, he's still an accused child molester, responded Myers, the Weekly's attorney, and the public has an interest in knowing whether a "powerful institution" is doing what it should to protect children.