by Jason Berry
Anderson had first encountered the Salesians in St. Petersburg, Florida, in 2002, when he sued one of the religious brothers, who was promptly transferred to a Salesian house in New Jersey. Later that year, he sued the order in Chicago for a Mexican priest who faced accusations from four Latino youths; the priest was packed off to New Jersey, then Mexico. When Joey Piscitelli contacted him, Jeff Anderson engaged a Bay Area attorney, Rick Simmons, as cocounsel. After taking the depositions of Whelan and his superiors, Anderson saw the California Salesians, with sixteen perpetrators, as a hive of corruption. Levada’s passivity from that reality, while he lived around the corner from Salesian headquarters in the City by the Bay, weirdly made sense. Anderson had taken Levada’s deposition over his decisions as archbishop in Portland several years before. Levada had sent predators in therapy back to ministry. The archdiocesan attorney, Robert McMenamin, had advised Levada to tell church officials about their obligation to report predators to the police. Levada declined. McMenamin resigned; he later began representing abuse victims. The Oregon Supreme Court dismissed Levada’s petition to disqualify McMenamin from such cases as a conflict of interest. McMenamin wrote to his successor: “I have loyalty both to my religion and the confidences of former clients, but not to church officials who deny justice to victims.”
Stirring his powdered vitamins and liquid fruit, Jeff Anderson pondered the mind-set that linked Levada, Mahony, and innumerable bishops he had deposed across two decades. Levada struck him as remote, affable, and clueless about what had been going on in his own diocese. But he fell right in line with the hierarchs, hiding the secrets of a celibate system that tolerated all kinds of behavior, the worst of which defiled innocent youth. Unlike AA members, they had no higher power to help them change their hypocritical ways. Popes received them with fraternal esteem. Their first responsibility was to a perverse chivalry that cloaked the sickest secrets. The splendor of Mass, the legacy of saints, the Eucharist as table of life had scant meaning for Anderson; he knew the rituals were vital to Catholics, but he had never known the spiritual dimension of the faith in such a way as to mourn its loss. But he saw how that loss tore at his clients. He was sensitive to the struggle of Tom Doyle and Pat Wall, who were regrounding themselves spiritually. He drew strength from their search, their learnedness, their tenacity in resisting the evil, in taking his battle however far he might.
Levada had gone to San Francisco in 1995. Since the 2002 scandal had broken, he had shoveled some of the muck. Among the clerics he had pulled from ministry for sexually abusing youth were a chaplain of the San Francisco 49ers football team, a former head of Catholic Charities, a rector of the cathedral, a head of the office of liturgy, a police department chaplain, and a former dean at the seminary who used the Internet to search for teenage sex partners.
Levada was unique among U.S. bishops for having been sued by a priest who blew the whistle on a cleric for making advances on a teenage boy.
Born in 1944, Jon Conley was an assistant U.S. attorney in Michigan who decided to become a priest in the late 1980s. Done with the bitter midwestern winters, Conley moved to San Francisco, went through the seminary, and was ordained. One night in 1997, as an assistant pastor, he entered his rectory to find the pastor, Father Gregory Aylward, crawling toward the back door. A flustered fourteen-year-old boy scrambled back to his post as phone receptionist. Suspecting the boy was too embarrassed to admit what had happened, Conley met with an auxiliary bishop who told him, “We usually keep these things in-house.” With Levada out of town, Conley decided to notify the San Mateo District Attorney’s Office. Frightened, the boy told investigators that he and Father Aylward had only been wrestling. No charges were filed.
Conley told the chancery he couldn’t live with a pedophile; he moved into a hotel. A chancery priest told Conley not to say “pedophile” or mention the accusations to anyone. The boy quit his rectory job. Conley met the family. The mother wept, saying she couldn’t force her son to testify about Aylward’s history of sexual advances. When Conley met with Archbishop Levada and a chancery monsignor, he knew the archdiocese was circling the wagons around Aylward.
When I interviewed Conley in 2005 on a magazine assignment, he said that Levada had used the word “calumny” when discussing the accusations against Aylward. In that meeting a monsignor was taking notes; Conley pulled out a tape recorder to avoid being set up as a scapegoat. “You don’t trust me?” said Levada. He ordered Conley to turn off the tape recorder. Conley refused. Levada ordered him onto administrative leave, saying, “Think about obedience.”
They met again privately, no tape recorder; Levada wanted Conley to undergo psychological evaluation. Conley refused. When the San Francisco Examiner got wind of Conley’s predicament, an archdiocesan statement said that the church had “instructed him to report the incident to civil authorities, and strongly supports the reporting of all incidents of suspected child abuse or neglect. It was [Conley’s] behavior subsequent to the reporting which was unacceptable.” Conley fired off a letter to the Examiner: “Why does the archdiocese of San Francisco not have written policies and procedures in place for priests to deal with situations of abuse?” He sued Levada and the archdiocese for defamation and infliction of emotional distress. Conley wanted a public apology and procedures for handling abuse allegations to protect whistle-blowing priests like himself. Levada ordered him to withdraw the suit and seek “a program of remedial assistance … [or] I will have no alternative but to impose on you the censure of suspension forbidding your exercise of all rights, privileges and faculties associated with the priestly ministry.”
Conley’s lawsuit was dismissed as an intrachurch matter. The boy’s family sued the archdiocese. Aylward admitted in a deposition that he had gotten sexual gratification for years from wrestling with minors. The archdiocese agreed to a $750,000 settlement with the family. Aylward left the ministry. Conley’s attorney appealed his case. A California appellate court ruled that the law mandating that clergy report suspected abusers superseded the freedom of religion privilege. Conley had a bona fide defamation claim against Levada. Depositions began; Levada threw in the towel. The church issued a statement praising Conley for reporting the incident. The archdiocese “prefunded” Conley’s retirement. How much, Conley would not say, but he had a nice apartment in the chic Noe Valley neighborhood with good views of the city. As we sat in his living room, watching TV coverage of Pope John Paul’s death, Conley, a stout, bearded chap with a keen sense of irony, murmured, “I do substitute work for priests on vacation. This church is a little crazy, you know?”
And then, as if by magic, several days after the white smoke heralded a new pope, Benedict XVI lowered a rope ladder that would lift Archbishop Levada out of the provincial muck, up and away to the Eternal City. Bill Levada would take Ratzinger’s place as the prefect of the Congregation for the Doctrine of the Faith. The new job assured him of a cardinal’s red hat. Why Levada? many people wondered. His credentials as a theologian were marginal. But Ratzinger realized that his office, backlogged with seven hundred cases of sex offenders, needed an American who understood the issue. Levada’s messy record in the swamps of scandal mattered little; he had proved his fidelity to the men of the apostolic succession.
By late summer 2005, four jury trials in northern California civil cases involving one priest had produced $5.8 million in judgments. Settlement negotiations yielded another $37.2 million to a plaintiffs’ group. Two of the survivors were women abused as girls by Father Greg Ingels, a canon lawyer who had advised Levada on abuse issues. On learning of the accusations against him, Levada let Ingels live quietly at a seminary with a retired archbishop, John Quinn. That move so outraged psychotherapist Jim Jenkins, chair of Levada’s clergy review board, that he resigned. A beaming Levada stood in the cathedral sanctuary for his farewell Mass when a process server handed him a subpoena to testify in a San Francisco case.
Mahony’s lawyers used the term “formation privilege” as shorthand for the
religious freedom argument by which that archdiocese shielded sex offenders’ files. Los Angeles Times reporters Jean Guccione and William Lobdell, who covered the legal saga with tenacious intelligence, wrote in 2004:
The archdiocese asserts that the privilege stems from a bishop’s ecclesiastical duty to provide a lifetime of formative spiritual guidance to his priests. As claimed by the archdiocese, the privilege would require that sensitive communication between a bishop and his priests involving counseling—including documents relating to sexual abuse of minors—be kept confidential.
Any action by the state to breach that privilege would violate both state law and the state and federal constitutions’ guarantee of religious freedom, the archdiocese’s attorneys argue.44
Anderson scoffed, “This kind of assertion of a First Amendment privilege has never succeeded elsewhere. Mahony is putting his fingers and toes in a big dyke, but he can’t keep plugging the holes.”45
Mahony had borrowed a page from the Vatican playbook. Archbishop Tarcisio Bertone, a top canon lawyer at the Congregation for the Doctrine of the Faith, asserted in 2002, “If a priest cannot confide in his bishop because he is afraid of being denounced it would mean there is no more freedom of conscience. Civil society must also respect the ‘professional secrecy’ of priests.”46
Bertone was a Salesian. His comments were utterly consistent with the order’s concealment of sex offenders in Jeff Anderson’s experience. Bertone had left the CDF in 2003 to become archbishop of Genoa, gaining administrative experience to help him rise in the apostolic succession. On June 23, 2006, Pope Benedict named Cardinal Bertone to succeed Sodano as secretary of state.
Only later did the news emerge that while in Genoa, Bertone had written a celebratory preface to the 2003 Italian edition of Father Maciel’s book-length interview, Christ Is My Life—a last-ditch effort at defending himself in the congregation where Bertone had previously worked. Christ Is My Life appeared some months before Ratzinger ordered the investigation. “The answers that Father Maciel gives … are profound and simple and have the frankness of one who lives his mission in the world and in the Church with his sights and his heart fixed on Christ Jesus,” wrote Bertone. “The key to this success is, without doubt, the attractive force of the love of Christ.”47
When Bertone’s endorsement surfaced in 2010, Maciel’s two grown sons had given an hour-long radio interview to Carmen Aristegui, a leading journalist in Mexico City, claiming he had abused them as boys and that meetings with Legion of Christ officials had disclosed, alas, that Maciel’s estate was empty. By then, Secretary of State Bertone and Cardinal Levada were waiting for five bishops from as many countries to deliver reports of their investigation of the entire religious order, a move without precedent in modern church history.48
CLOSING THE DEAL IN CALIFORNIA
As Ray Boucher pushed his counterpart Mike Hennigan to embrace an aggregate settlement exceeding $600 million, all of the attorneys with cases in the Clergy 2 grouping saw Cardinal Mahony’s role as strategic if they were to prevail. Mahony was being battered in the media (the New York Times and Los Angeles Times, in disgust at his recycling of pedophiles, called on the cardinal to resign), but the lawyers knew that to close the deal, they needed Mahony on the job, threading the tightrope between insurance companies and the religious orders, particularly the Salesians, who would have to contribute funds for the settlement packages to come together. For all of their clients’ fury at the long delays, the lawyers realized that attacking Mahony as author of a cover-up undercut their interests. As Steve Rubino put it: “If a lawsuit says that negligence causes an injury, that’s a covered claim. But if proof comes out that these were intentional acts, a cover-up, the carriers don’t have to pay. We knew as we prepared these cases, that if we went to trial and aggressively argued cover-up, we’d walk right out of coverage: no deep pocket. And we knew Mahony did not have the assets to pay the full value”—which Boucher was pushing for an average of $1.4 million per case.
Jeff Anderson suggested they find a way for Mahony to meet some survivors. As part of this strategy, Boucher hired a producer to film interviews with the clients, edit their testimonies with the reflections of parents or spouses, intercut the memoir sequences with news footage where possible, and provide DVDs of the ten-minute profiles to Mahony and the judges overseeing the mediation process, as a way of turning “clients” and “survivors” into actual people whose stories would inject pathos and real-life issues into the legal mix.
“I’ve met a very large number of victims,” the cardinal told me in our 2005 interview. “I’ve also looked at the taped interviews the plaintiff attorneys here have developed. Dozens of interviews on DVD. I’ve listened to those, every single one of them. They just cause you to cry. You simply are in disbelief at what has happened to the lives of these people. It has been a very humbling experience. Spiritually, I was absolutely at the bottom, which means total vulnerability to God’s grace. And I began to realize that this is the ministry Jesus Christ is asking of me and others at this time, to repair the damage, to make sure it won’t happen again.”
Boucher, at a dinner with Mahony and counsel Mike Hennigan in the cathedral rectory, insisted that the settlement numbers for the 554 claims go well north of $600 million, using $1.4 million per victim as the gauge. He knew his counterparts were in a mosh pit with the insurance lawyers. Subsequently, Hennigan suggested they divide the L.A. group into two sequences—one small, one large. For Mahony’s planning, they had to cut the first deal before the end of 2006, and give the cardinal some time to corral the rest of the money. On December 1, 2006, the archdiocese agreed to $60 million for forty-five plaintiffs. These cases involved the most recent perpetrators, post-1985, when the archdiocese was self-insured, and the earliest cases, when it had little or no insurance. Mahony announced that $40 million had come from “funds we set aside last year,” money from religious orders and limited insurance payments.49
Most of the trial lawyers, like Jeff Anderson and Steve Rubino, had been working on these Orange diocese and northern California cases for four and a half years, bearing the cost of hotels, meals, and paralegal help; the long flights between LAX and Minnesota or New Jersey also were a drain on time with their families. As cases settled and clients were paid, the attorneys who carried large loans for the relentless work began repaying their banks, which gave them some breathing room. In the final payout, they stood to pull in fees in the range of $25 million each, if the archdiocese met the target Boucher had set for some 500 remaining cases.
Although the Supreme Court had refused to hear Mahony’s appeal on the so-called formation privilege, Hennigan had delayed the documents’ release by arranging for a retired judge to read the voluminous files and decide what should be disclosed. Survivors like Manny Vega wanted Mahony to stop hiding the files. The lawyers saw the cardinal scrambling for money.
“Mahony wanted to settle from day one, but the documents got in his way,” said Rubino. “He had a delicate balance between cooperating with carriers and not turning over files that would kill your defense. Insurance carriers kept threatening to pull.”
Near the end of 2006, Boucher got Hennigan and Mahony to agree on $660 million. “The church had a budget for the number of diocesan cases, and the ones with religious orders,” Boucher told me. “I think Hennigan was right that the carriers should have put up more. The handful of major religious orders had adequate resources to cover their obligations, but the archdiocese did not have a buy-in with them as yet … Mahony went to Rome to get approval.”
At the Congregation for the Clergy, he needed the approval under canon law to alienate church property at a level far greater than did Boston’s O’Malley, who faced an $85 million hole in 2003. Benedict had appointed a new prefect, Cardinal Cláudio Hummes, a Franciscan prelate from Brazil. In an interview with John Allen of National Catholic Reporter several months after the settlement was announced, Mahony said, “Of our total settlement, we’ve only needed
to get permission to alienate $200 million … Cardinal Hummes particularly has been extremely helpful.” Mahony told Allen that he had met with Cardinal Franc Rodé, prefect of the congregation that governs religious life, in May 2007. Rodé, a Slovenian who had spent time in a World War II work camp, was one of the more reactionary figures in the Curia, hostile to Vatican II. Rodé ordered a 2010 Vatican investigation of American nuns, the questionnaire for which sought information on their financial holdings, which most of the sisters’ superiors ignored. Rodé was a great friend of Maciel’s and utterly loyal to Legionaries. Two weeks after the July 15, 2007, settlement was announced in Los Angeles, Cardinal Rodé took a vacation in sunny Cancun, Mexico, courtesy of the Legion, according to a Legionary priest. In the ornamental language on which cardinals thrive, Mahony told Allen that Rodé “gave us the key principle … He said the religious institutes must bear full responsibility for their members, and the dioceses for their members. He said that’s the only formula that’s going to work, and that’s the formula we’ve been following.”50
Of course, it was Mahony’s formula all along. Boucher continued: “He came back from Rome with the authority to settle the cases at the amounts we set, and to apply pressure on the religious orders. The orders had to come up with about $200 million. The Salesians were the worst offenders—the most callous, the least apologetic, the most repellent.” In early July, Boucher watched from across Hennigan’s office as Mahony worked the phones. “He was dialing for dollars with the religious orders.”
But for religious orders to pledge $200 million did not mean they could deliver cash on the barrel: property sales and aggregation of assets take time. In the meantime, the archdiocese had to write the check.
HOW MAHONY RAISED THE MONEY