Saturday, March 27, 2010

Calling Cardinal Newman

Jane Fortescue Seymour (1825-1878)
Portrait drawing of the very Rev. John Henry Newman, later Cardinal Newman
1875 or earlier
Drawing black chalk
73 × 51 cm (28.74 × 20.08 in)
Exhibited at the Royal Academy in 1875

Blessed Cardinal Newman, you should be living at this hour.

Your intellect, clarity of thought, debating skills and great literary talents are needed at this time.

The personal attacks on the Pope continue over the sex abuse scandals.

There is one case where he is accused of personal culpability: Father Lawrence Murphy, the pedophile priest in Wisconsin who assaulted over 200 children in his care in a very lengthy period.

The news reports in the United Kingdom (even the normally quite sensible) have discussions by pundits of "a smoking gun" (with the innuendo of Watergate) and of a Pope fatally compromised and weakened in his Office through his alleged "personal guilt" because of this case and one in Germany

The so-called "indictment" against the Pope constantly changes. It is always difficult to put forward a complete defence unless the charges are formulated in reasonably precise terms.

It is of course classic "smear": fire a hundred bullets at a target on a door and maybe one may hit a target, but in the meantime the door is entirely destroyed. In any event the show sounds and looks impressive.

The Times in a leader has attempted to put forward its case against the Pope. It is in its leader. It states the position thus:

""The steady drip of revelations about the indolence of the official response to cases of child abuse has sapped Pope Benedict’s authority, and the scandal has now reached him directly.

So far, his spokesmen have given a brush-off rather than an explanation. But an explanation is urgently required, for the good of the victims and of the Church.

The Pope faces accusations that in the 1990s, as Cardinal Joseph Ratzinger, he failed to discipline priests who had molested children and did not alert the civil authorities. Father Lawrence Murphy, a priest in Wisconsin, taught at a school for deaf children from 1950 to 1974. He assaulted 200 children in his care. Documents in the case claim that successive archbishops failed to report allegations against Murphy to the police. Eventually, the case was forwarded to the Vatican’s Congregation for the Doctrine of the Faith, which Cardinal Ratzinger led. But two letters sent to him in 1996 about the Murphy case from Rembert Weakland, then the Archbishop of Milwaukee, went unanswered.

When Cardinal Ratzinger’s second-in-command instructed Wisconsin’s bishops to initiate a canonical trial, the proceedings were peremptorily stopped after Murphy wrote directly to the Cardinal. If found guilty, Murphy would have been defrocked. His plea to Cardinal Ratzinger was that he repented, was in failing health and desired to live the remainder of his life as a priest. Murphy died two years later, with an ostensibly unsullied record as a priest. These are allegations of utmost gravity. In responding to them, the Pope has been ill served by his spokesman, who declared yesterday that the lack of more recent allegations against Murphy was a factor in the decision not to defrock him.

Child abuse — less euphemistically, the rape and sexual torture of children — by priests has been uncovered in many countries. Those crimes and a failure adequately to acknowledge and atone for them have inflicted immense damage on the Church’s moral witness.

Awesome crimes have been committed by Roman Catholic priests who found their opportunity in their clerical office. Having perpetrated evil, they then found refuge within the Church. The Pope stands accused of acquiescing in that sanctuary. Sadly, he has a case to answer. "

The Murphy case is not a difficult one for the Vatican to defend the Pope personally

As The Times states, the allegations against the Pope personally in the Murphy case appear to be "of utmost gravity":

1. After Murphy wrote to Cardinal Ratzinger personally, the process to defrock him stopped
2. The reason for this is "implied": Murphy pleaded that he had repented and that he was in failing health and desired to live the remainder of his life as a priest.
3. The then Cardinal Ratzinger wrongly accepted that as a plea to stop proceedings and by accepting that plea the then Cardinal Ratzinger acquiesced in giving sanctuary to someone who had wrought such terrible damage to his victims.

The story originated in The New York Times. The New York Times helpfully reproduces the documents on which it bases its story. The Vatican`s defence of the Pope is in the documents.

Read them here under the banner "The Document Trail: The Predator Priest Who Got Away"

Be warned: the documents are in places extremely unpleasant reading.

Who was Father Lawrence Murphy ?

Lawrence Murphy was an extremely disgusting and repellent individual. He preyed on deaf children who were entrusted to his care. He grossly abused his position of trust. Not only did he sexually abuse his charges (at least two hundred cases are documented) but he also abused them while he was hearing their confessions. He used his clerical collar as his disguise to molest and torture deaf children in his care in the boarding school which he ran for 22 years. The abuse took place in the Archdiocese of Milwaukee.

The abuse took place froom 1950 until they came to public attention in 1974.

The papers of the Archdiocese about how it handled the investigations at that time were lost.

Victims also reported the matter to the civil authorities in 1974 and thereafter but no prosecutions were instigated.

Instead of being disciplined, Murphy was  moved by Archbishop William E. Cousins of Milwaukee to the Diocese of Superior in northern Wisconsin in 1974, where he lived with his mother. He tried to continue his work with children in parishes, schools and, as one lawsuit charges, a juvenile detention centre and in some cases succeeded for a number of years.

There is an extraordinary letter in the correspondence from the then auxiliary Bishop of Superior (Fliss) in 1980 to the Archdiocese of Milwaukee recommending Murphy "for the deaf apostolate"

Fortunately since 1974 he was never given any such ministry except on an "informal" basis. But it does appear that unofficially he was giving retreats for deaf people and carrying out what he thought was his "apostolate to the deaf". In fact this so-called "apostolate" was persisted into the 1990s even while canonical process was commenced and continued

In December 1993 the Archdiocese of Milwaukee commissioned a report by an independent expert. Murphy was interviewed for a number of hours by the expert. It paints a horrifying portrait of this individual.

Murphy confessed that he had done what he had been accused of by the victims in 1974. The scale of the sexual activity was not minimal in the least.

It also brought to light that he had used the confessional as a means of securing information about which victims he would choose and in which he solicited for sexual activity. He did have a profile for selecting a victim that he would pursue. He deliberately preyed on the vulnerable and those who lacked protection. The element of calculation in the abuse is breath taking. He lacked any insight into his conduct. He did not appear to appreciate or realise the harm which he had inflicted on the victims. He did not appear to be quite sane.

What started the canonical process ?

Rather surprisingly, the Archdiocese of Milwaukee in December 1993 did not start the canonical process against Murphy when it received the expert`s report. Based on what the expert had told the expert, it might have been thought that the case should have been a "slam dunk". Whether the Archdiocese took any action at all at that time is not evident from the papers. It would appear not

It would appear from the papers that it was only in December 1995 after the Archdiocese received claims from attorneys on behalf of clients and also representations from the deaf community that the then Archbishop Weakland set up an investigation. The Archbishop then went on a sabbatical from 1st January 1996 and did not return till 1st July 1996.

While the Archbishop was away, the investigator discovered about 100 - 150 victims.

In July 1996 the Archbishop of Milwaukee wrote his letter to the then Cardinal Ratzinger in his capacity as Prefect of the CDF. It was a formal letter. It concerned not only Murphy but another priest, Father Neuberger. Both were to be charged with solicitation in the confessional as the facts had only "recently ... come to light".

It sought Ratzinger`s advice. The letter said that as a result of legal researches it was now learnt that the offence of solicitation came within the jurisdiction of the CDF and he sought Ratzinger`s advice as to how to proceed.

From the correspondence produced by The New York Times there does appear to be a follow up letter by Weakland to the CDF on 10th December 1996 asking for a reply to the earlier letter of July 1996

The Process Begins

Also on 10th December 1996 the Archdiocese of Milwaukee in terms of the Canon Law then formally notified Murphy of the charges under Canon Law which it intended to pursue against him and then served the necessary documentation on him. The charges were three in number:

1. two in relation to solicitation in the confessional
2. sexual abuse of minors under the age of sixteen.

All the charges related to events in the period 1950 to 1974 that is to say while he was at the School for the Deaf in the Archdiocese of Milwaukee.

Bertone at the CDF replies

On 24 March 1997 the then Archbishop Tarcisio Bertone replied to the two letters of Weakland.

He advised that proceedings should be instituted against the two clerics in terms of Crimen sollicitationis the so called `Secret` instructions from the Vatican in 1962 on disciplinary procedures for priests suspected of sexual abuse.

In his letter he drew attention to two articles of the Instruction: Article 5 which is to the effect that bishops may supervise or delegate the disciplinary process; and Article 55 which is to the effect that the defence must be given sufficient time to prepare.

A Plea in Bar of Trial

Meanwhile in February 1997 there was an informal discussion between the Canon lawyer acting for Murphy and the members of the Tribunal. It would appear that the defence was arguing that the 1962 Rules stipulated that there was a limitation period of 30 days from the date of the offence of sollitation in the confessional. The Tribunal thought that there was a limitation period of 5 years from the date of the offence. In either case, it was thought that permission would have to be sought from the Vatican that the limitation period be waived.

As a result Weakland wrote on 10th March 1997 to the Prefect for the Supreme Tribunal of the Segnatura at the Vatican (Chief Justice) for a waiver of the period of limitation.

On 9th April 1997 the Supreme Tribunal wrote to Weakland saying that they were not competent to grant the request. The matter had to be dealt with by the CDF and they were passing the request along to the CDF in view of the urgency of the situation.

On 14th May 1997 Weakland replied to Bertone`s letter of 24th March 1997 thanking him for his letter and confirming that the matter would proceed notwithstanding "the peremptory time periods have expired according to both the 1962 norms as well as " the Code of Canon Law of 1983.

Realisation that the Proceedings were in the Wrong Forum: Not Milwaukee but Superior

After May 1997 it would appear that someone at the Milwaukee Archdiocese realised that the proceedings raised against Murphy had been raised in the wrong forum or Court. The Milwaukee Diocese did not have jurisdiction.

There is an interesting memorandum on the New York Times papers. It is dated 31st October 1997. The Archdiocese did not have jurisdiction. Jurisdiction rested with the diocese of the accused`s domicile: the Diocese of Superior.

Murphy had been domiciled in the Diocese of Superior since 1974. It is hard to see why such a fundamental mistake was made.

Proceedings start again in Superior

On 14 December 1997 proceedings started all over again (as they had to) in Superior against Murphy

On 6th January 1998 the accused was cited to appear again this time before the correct Tribunal

On 5th January 1998 the Milwaukee Diocese explained the position to the victims. The Diocese was perhaps "economical with the truth".

In a letter the Milwaukee Tribunal wrote to the victims saying:

The Memorandum and the Letter of 5th January 1998

The Memorandum and the Letter of 5th January 1998 are also important. These are sufficient evidence that even before the Tribunal started its task and started the hearing it had already made up its mind about the verdict. Murphy was guilty and had to be laicised as quickly as possible.

The members of the Tribunal were compromised themselves and should have asked to be excused. Murphy denied the charges. He was at the least entitled to an impartial Tribunal and a conviction based on the evidence presented at the hearing and in accordance with the 1962 Rules. A Tribunal with a new composition should have been set up to hear the case. By hearing the case without a change in composition, the Tribunal simply provided Murphy with an opportunity for an additional ground of appeal to the Vatican

Murphy`s Letter to Cardinal Ratzinger

On 12th January 1998 Murphy wrote his letter to Cardinal Ratzinger. This is the letter which has caused the present controversy.

It is worth while examining the letter carefully

One might think from the furore that this was a personal letter written by a man dying of cancer in pathetic terms which tugged at the then Cardinal`s heart strings and allowed him to forget all considerations and grant mercy to a dying man

It is of course nothing of the sort.

It is a formal legal appeal to the CDF seeking to quash the citation which he had received after 6th January 1998 ordaining him to appear before the Tribunal in Superior in January. He wanted his Winter holiday in Florida which would last a few months and he did not want it interrupted by proceedings in Superior at that time of year.

He wanted to slow the proceedings down. He was playing for more time.

Anyone reading this letter would not be fooled.

Paragraph 4 is a plea against the irregularity of the proceedings to date especially that the new Tribunal is being manned by the staff of the old Milwaukee Tribunal, in other words it was not a new tribunal but the old Tribunal sitting under a different guise or label. In other words he is pleading that the Tribunal is wrongly constituted and that there is an irregularity. he is preparing the ground for a future appeal.

Paragraph 5 is a legal plea as to the actions being time barred

Paragraph 6 is the offending passage which has caused the commotion in the press. It is the plea of ill health and old age and the request for mercy from a dying man.

Paragraph 7 is the paragraph instructing the CDF to reply to his lawyer while he is on holiday in Florida.

It is not the work of a man on his death bed who has just had another stroke.

Personal involvement of the Pope ?

Although all the correspondence to the CDF is addressed to the then Cardinal Ratzinger, it is to him as Prefect of the CDF. All the correspondence is formal correspondence.

In other words one would not expect the Cardinal to read and deal with the letters personally. The matters were in fact dealt with personally by his deputy, the then Archbishop Tarcisio Bertone, now of course Cardinal and Secretary of State.

In the same way as when one addresses formal correspondence to a Government Department one does not expect the Government Minister to read and personally deal with it. The matter will be dealt with by someone lower down the "food chain".

The CDF gets involved

When one reads the correspondence with the CDF and the memoranda of meetings between the CDF and the Archdiocese, one gets the impression of the CDF trying to delicately point out to the Archdiocese/Diocese where it was legally going wrong in terms of the relevant Canon Law.The Archdiocese had already made major errors in the process even before the formal trial had started.

There were still some errors of law made by the now Diocese of Superior which were pointed out by the CDF. These had to be corrected e.g. in the original document the Bishop should have stated that other rememdies had been considered and rejected. This was omitted and the Bishop had to serve a document stating this before the process could continue.

The CDF and its officials seemed to be trying to guide the American diocese so that there would not be a successful appeal against conviction and that would mean that the process would have to start again.

One major point was the quality of the evidence. As Archbishop Bertone pointed out the evidence was in relation to events that had happened nearly thirty years before. It was not a fatal objection to a trial but the leading of evidence and questioning of witnesses would require careful handling and consideration especially as the victims had certain disabilities.

The Milwaukee Archdiocese Tribunal had not exactly covered themselves in legal glory up till then. And the trial had not even started. One does wonder if the CDF thought that the Milwaukee diocese were up to handling such a difficult case.

A good example is that after a meetiing between the CDF and the Diocesan authorities in Rome, the CDF sent a written record of the meeting to the Archdiocese. It was written in Italian. The translation was done in Milwaukee using "Google". The translation of such an important document is totally incomprehensible.

One would have thought that the two page document would have been properly and professionally translated into English as it is a document of some importance and did require to be seen by a number of people who did not speak Italian and did contain a number of legal phrases which had to be properly and accurately translated if the process was to proceed in a proper way.

All the proceedings happened before the Reforms in Canon Law re abuse in 2001. If the proceedings had been initiated post 2001, the CDF would have taken the case from the start and dealt with it in an appropriate and timely manner. Unfortunately before 2001, the proceedings had to be initiated by the local dioceses before the local tribunals with a right of appeal to Rome.

In the recent Irish Report about abuse of children in Ireland, the Committee reported that there was nothing wrong with the Canon Law it just was not used or used properly in Ireland. Certain local Canonical authorities do not appear to have the necessary skill and expertise to deal with contested cases. This is what seems to have happened in Milwaukee too with the Murphy case.

The meeting in Rome : May 1998

The meeting in Rome was not in response to the letter of Murphy of 12th January 1998. That had been responded to and the Diocese had dealt with it.

On May 30 1998 there was a meeting in the Vatican between Archbishop Bertone, the undersecretary of the Congregation for the Doctrine of the Faith, Father Gianfranco Girotti, and the American prelates concerned with the case.

It is clearly seen from the minutes of the meeting that in the congregation there were doubts about the feasibility and opportuneness of the canonical process, given the difficulty of reconstructing the events that happened 35 years earlier, above all that which concerned the crime in the confessional, and given that no other accusations resulted for the period from 1974 onward.

At the conclusion of the meeting, Bertone summarised the two essential lines to be held: a territorial restriction for the priestly ministry (in practice, Father Murphy had to stay in Superior) and decisive action to obtain the priest's repentance, including the threat of "resignation from the clerical state."

It was an attempt to find a speedy and practical solution to a problem where it was clear that the Milwaukee authorities lacked the ability and possibly the resources to carry out a speedy and successful prosecution which would be "appeal proof".

The diocese accepted that this was the way to proceed.

Four months later on 21st August 1998 Murphy died.

Why did the Milwaukee archdiocese decide to start proceedings after such a great length of time ?

One does wonder why the Archdiocese of Milwaukee feel that after so many years of doing nothing that it had to raise proceedings. The pevious Archbishop had just sent him into eile to his mother`s house and did not see the need for formal laicisation.

It does appear that one of the major reasons for the action of the Archdiocese of Milwaukee in 1996 was that as faculties had not been withdrawn from him as a priest, Murphy was still claiming to be a priest in good standing and wanting to exercise what he called "his apostolate to the deaf". Yes it is pretty sick.

He had on an intermittent basis been conducting retreats etc trying to establish contacts. The Diocese wanted to stop him doing that as there had been complaints from the Deaf Community who had been his victims from 1950-74 (the period of abuse which the Church knew about). As Bertone and his officials had to point out to the Diocese, this could be done without a hearing simply by the Bishop using his existing powers.

One does wonder if the Archdiocese at the time simply saw the proceedings as a way to get them off the hook with the Deaf Community. To be seen to be acting but to no real purpose.

From the correspondence what Bertone and the officials in the CDF was trying to do was assist the Diocese and Archdiocese to deal with a very troublesome individual who was using his clerical status as a disguise to meet his perverted desires within the then existing framework of Canon Law. It was clear that the accused was going to defend the case to the last ditch. He would take every point and take every appeal. It would appear that he and his family denied that there had been any abuse. The victims were not going to be spared from testifying by Murphy.

It is perhaps a pity that the Archdiocese of Milwaukee did not seek expert help either from the Canon Law experts in the USA or at the CDF as to how to deal with this difficult problem before embarking on a complex legal process in which they were obviously out of their depth.

It was only when they were struggling in deep water in the middle of a course of action that they had to call on higher authorities for help.

They seemed to be about to be mired in procedural difficulties even before the main difficulty of hearing the evidence and trying the case had begun.

Child abuse cases are notoriously difficult cases to prosecute and try in the civil sphere.

In the civil sphere cases involving events which happened long ago are rare. There is always a rule forbidding any case where the cause of action occurred after "a period of limitation": sometimes 5 years, others 7 years. It is regarded as being in the interests of justice and fairness.

In most civil cases, a period of thirty five years from the date of offence to the date of trial would be struck out as being well out of time. Memories fade. The evidence would be too unreliable.

Generally in the civil sphere it is only in very serious cases such as murder War Crimes, torture and the like would there be no limitation period. Courts will allow an extension of the limitation period in child abuse cases. But they will generally be conducted by very experienced advocates and under certain restrictions again in the interests of fairness to both sides.

Ask any lawyer who has been called in and required to get a colleague out of a mess where the strategy and the Court action is misconceived and the new lawyer is expected to appear as a Deus ex machina while proceedings are live. They will tell you what it is like.

The raising of the case by the Archdiocese was misconceived and ill-thought out from the start. It may have be done for good motives but the case was probably doomed from the start.

That of course is why the Vatican had to change the rules and procedures of Canon Law regarding abuse by priests and religious in 2001. And who, apart from Pope John Paul II, were the main people who pushed for it and were responsible for that ?

Pope Benedict XVI and Cardinal Bertone

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