Prosecutors Test New Legal Strategy In Clergy Case

Cardinal Roger Mahony, the head of the Catholic Archdiocese of Los Angeles, says he is willing to appear before a federal grand jury as part of an investigation over the way he dealt with priests who allegedly abused children.

In 2004, Mahony admitted publicly that he made mistakes by transferring priests from diocese to diocese. Three years later, the archdiocese paid $660 million to more than 500 alleged victims of sexual abuse — by far the largest settlement in the country. But the criminal investigation never went away, and the grand jury will examine whether he and his deputies obstructed justice or defrauded parishioners.

The grand jury has subpoenaed records involving 22 priests, of whom two have died and the rest are no longer in ministry, Mahony said Thursday on Los Angeles talk radio station KNX. Most of the alleged abuse occurred decades ago, he said, when it was standard practice to put an abusive priest in a treatment program and later return him to ministry.

"We were mystified and puzzled by the whole thing," Mahony said. "This way of dealing with these issues has evolved. And during those early years, it was not handled right. We've said that over and over again. So that's what puzzles me, why now does this come up?"

Two reasons, sources say. First, federal prosecutors may be sifting through documents in civil and criminal cases that have recently been released to attorneys in search of evidence that church officials obstructed justice. Second, sources say prosecutors are exploring whether Mahony and others schemed to deprive parishioners of the "right of honest services" — a little-known statute often used in public corruption cases.

Patrick Wall, who investigates sexual abuse cases for plaintiffs against the Catholic Church, says, "So the theory is Cardinal Mahony knew, that the vicars for clergy knew and that several auxiliary bishops knew, and they failed to warn the public of that danger."

The statute has never been used against church officials, according to Rebecca Lonergan, a former federal prosecutor who specializes in public corruption cases.

"This is a very creative and unusual use of one of the statutes that's been out there for two decades," Lonergan says.

She says federal prosecutors are using public corruption laws that are unavailable to the local district attorney. Since 2002, the Los Angeles County District Attorney's office has investigated Mahony for perjury and obstruction of justice. That investigation hit a dead end. But sources say files obtained by a local grand jury found their way over to the U.S. Attorney's office. And last fall, federal prosecutors began presenting evidence to a grand jury with their new legal theories.

Lonergan says honest-services fraud is a hard argument to make to a jury.

"When you have a defendant like a church official, who is highly respected, it's a very steep hill to climb to convince people that these people have an actual intent to harm, an intent to defraud," she says. "Poor judgment is not the same thing as an attempt to defraud."

For his part, Cardinal Mahony says he is cooperating with investigators. And he believes that despite mistakes he may have made in the past, the archdiocese today is safe for children.

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