Betrayal of Justice

by Mark M Bello

  “Plaintiff calls Father Jonathan Costigan.”

  Father Jon was sworn in and recalled certain key events. His conversations with the Voice were admissible hearsay. While they were out of court statements used to prove the truth of the assertions being made, they were also admissions against the interest of a party. As such, they were an exception to the rule.

  Jon testified to his conversations with Moloney. He was advised of the camping incidents by Father Moloney and brainwashed into believing the church would be better served if Jon were discreet. Jon wanted Gerry out of his parish, but Moloney convinced him to consider the bigger picture, the future of all the children of the church, not only the Tracey boys. Moloney asked Costigan to “keep an eye” on Gerry, to limit his contact with children. The church would keep an eye on him off-campus.

  At Moloney’s insistence, Jon offered to counsel Mrs. Tracey and the boys, without disclosing his knowledge of the source of their troubles. He rationalized this request and convinced himself the boys would receive the help they needed while the church would avoid scandal. He recounted the meeting at Jennifer’s house, where she confronted him about his involvement in the cover-up and the guilt he felt. He described his total shock when Jennifer told him the true extent of the abuse and his meeting with Rothenberg and Jennifer at Little Daddy’s to discuss criminal and civil action.

  Walsh’s cross-examination centered upon whether Costigan was aware of any prior acts of sexual abuse. Walsh acknowledged the church’s discreet methods of handling the Tracey situation were ill-advised. However, he asked if Father Costigan had ever heard any mention by any member of the church hierarchy that Bartholomew had engaged in inappropriate behavior prior to Lakes and the Tracey family. Jon had to admit he hadn’t.

  After Jon stepped down, Zack was forced to rest his case. He had no way of contacting the mystery caller. The Berea families weren’t coming, even if they were alive. He was troubled. He poked around at the edges, but he failed to nail down the church’s direct involvement or knowledge of Bartholomew’s Berea escapades. He failed to prove the transfer to Farmington was made with knowledge of Gerry’s decadent predispositions.

  While Micah was attempting to trace the mystery caller, this couldn’t happen soon enough to be useful. Zack was confident he secured a verdict against the priest. He was frantic his efforts would fall short against the true financial source, the church. What good is an uncollectible seven or eight-figure verdict?

  He considered the sealed files in the Berea civil case. Could he persuade a judge to unseal them? Provide evidence of the church’s involvement in settling the previous case while relocating the families to assure their silence? That proves prior notice, doesn’t it?

  Would Perry grant him time to unseal the files to present on rebuttal? Would Foley tell the truth about the Berea incidents? Too risky, he decided. Maybe, I can get these things in through the back door without the families, but can I do so in time?

  Zack telephoned Micah and instructed him to immediately begin the process of unsealing the civil files and preparing them for presentation in court. The next step in the trial was Walsh’s expected motion for a directed verdict. Walsh would concede he could not get a DV for Gerry but deserved one for the church. He visualized Walsh’s argument:

  “Your Honor, there is not a shred of credible evidence to suggest the church had any knowledge of Gerry’s propensities prior to these incidents in Farmington . . .”

  Chapter Fifty-Seven

  “ . . . Furthermore, Your Honor, when church officials did discover Father Gerry’s illness—pedophilia is an illness—it moved quickly to obtain treatment for Kenny and Jake Tracey and remove Gerry from Lakes and into a treatment facility. Perhaps they could have been more forthcoming to the Tracey family when they discovered the abuse. My clients reflected upon their policies and have offer apologies to the Tracey family for not being entirely forthcoming.

  “However, Your Honor, none of this has anything to do with this case. This case is about allegations the church knew about Father Gerry’s illness and transferred him to Michigan, with knowledge of his illness. These allegations have not been proven. Plaintiff has the burden of proof, by a preponderance of the evidence, that the church was guilty of negligence before Father Gerry’s placement to Michigan. Negligence, in this context, would require church officials knew or should have known about his illness. Again, Your Honor, there is no credible evidence of such knowledge. Gerry Bartholomew is a cunning, evil predator of children.” Walsh cut all church ties with Gerry in his motion.

  “He operates in secret. He obtains the silence of children by threatening them. How could anyone know about this until the predator was caught? Thank God he was caught! The church is investigating previous placements. Gerry will meet justice for every incident my clients uncover. However, a verdict against the church requires direct evidence of the church’s knowledge or notice, and there is none. Thank you, Your Honor.”

  “Mr. Blake?” Judge Perry made eye contact. “I presume you wish to oppose this motion?”

  “I do, indeed, Your Honor.”

  “Please proceed, Mr. Blake,” the judge directed.

  “Thank you, Your Honor. I’ll be brief. Mr. Walsh is correct. There’s no direct evidence the church was aware of Father Gerry’s condition. There is plenty of evidence. However, they should have known or probably knew. You heard Detective Jack testify about the previous criminal charge and the silence surrounding it. It sounds remarkably similar to the conspiracy of silence in this case.

  Is Gerry Bartholomew sophisticated enough to pull this off? Does he have the assets or cunning to orchestrate this type of criminal case resolution? You’ve heard the testimony of Micah Love. Who else but agents of the church had enough assets to arrange or stood to gain anything by the disappearance of these witnesses? You’ve also heard from Father Jonathan Costigan, an employee of the defendant. He testified he was directed by his superiors to help cover up Father Gerry’s activities in Farmington.

  “Rape is a crime, Your Honor. Failure to report an incident of child abuse is a punishable misdemeanor. Does the church’s behavior in Farmington entitle us to infer the same type of cover-up occurred in Berea and elsewhere? What’s the real function of this Coalition? Why does it exist?

  “We’ve seen the video evidence. The plaintiff would respectfully suggest this provides enough evidence to permit the unsealing of the Berea civil case documents. With those in hand, we will all know whether the church knew or should have known about Gerry’s prior behavior. If Your Honor were inclined to grant the defendant’s motion, we would ask, at the very least, for time to unseal and present these records in this case, to this jury. In a motion for directed verdict, the plaintiff is entitled to every reasonable inference. At the very least, we are entitled to wait until the close of all the proofs in this case. Thank you, Your Honor.”

  “Thank you, gentlemen,” Perry turned from one lawyer to the other. “Both of you made strong arguments in support of your respective positions and clients. The defendant’s motion is denied. I find the jury could reasonably infer the conduct suggested by the plaintiff from prior activities of the church relative to the issue of clergy abuse, particularly in this case, and a directed verdict is contraindicated. You may renew the motion at the close of proofs, Mr. Walsh.”

  He read the words from a piece of paper on his bench. His mind was made up before the motion was argued. Perhaps he had a similar cheat sheet for an opposite ruling. One never knew with judges.

  “Are you ready to proceed with the case for the defense, Mr. Walsh?

  “Yes, Your Honor.”

  “Please proceed.”

  “Thank you, Your Honor.”

  The case for the defense was simple. Walsh recalled Moloney to re-explain Coalition functions, ranging from charity work to promoting volunteerism, from checking on parishes and parish priests to public relations. The role of the Coalition varied, but they were not clandestine in the context argue
d by Blake. Whatever happened in Coral Springs or Berea had nothing to do with the Coalition. No official of the church was aware of Father Gerry’s depraved condition until after the Michigan cases. When notified, the church took quick and decisive action to assist the Tracey children and remove the priest. “What more could we have done?” Zack could not lay a glove on him on cross. This guy was as smooth as they came. Zack was able to rehash all of the Berea subterfuge, a positive, only to have Moloney deny Coalition involvement in any of it, a negative.

  Walsh next called Dr. Mark Unatin to the witness stand. Unatin, as expected, testified the boys would be harmed by long-term care, as it tended to reinforce painful incidents in their minds. With less treatment, there was a strong possibility the incidents’ impact would lessen with time. He wasn’t arguing for suppressing their feelings or withholding care, he was arguing care was not necessary over the long term. He also floated secondary gain as a motive to continue treatment. After all, long-term treatment would pad the pocketbooks of both Rothenberg and the Tracey family. This was Unatin’s revenge for Rothenberg calling him whore on the witness stand.

  On cross-examination, Zack used the same techniques Walsh used on Rothenberg. He established the treating doctor was in a better position to discuss diagnosis, prognosis, and treatment. Unatin repeated the treating doctor’s opinion might be colored by secondary gain and fascination with the subject matter. Sometimes, a detached, independent evaluator renders a more reasoned and uncolored opinion.

  Unatin also admitted he was not a pediatric psychiatrist and never counseled victims of child abuse. He admitted he might be wrong and Rothenberg might be right. Finally, he testified he was paid $20,000 to evaluate both boys, write narrative reports, and testify in court.

  Walsh followed Unatin with Glimesh and Foley. The purpose of the clerics’ testimony was to establish their lack of knowledge related to the Berea occurrences. The two testified they had no knowledge, whatsoever, of Bartholomew’s illness, before, at the time of, or after the transfer. Bartholomew and his lawyers worked out the plea bargain, resulting in probation and a sealed conviction. Foley and Glimesh were out of the loop.

  Foley further testified no parishioner ever approached him, including the MacLean or O’Connell families, to complain about Gerry for any reason, let alone child sexual abuse. As far as Foley knew, Bartholomew was a model assistant pastor, and there was no need to warn Farmington of anything. While this was a tragic ordeal for the Tracey children, only Bartholomew could have prevented it.

  Zack’s cross-examination focused on the unlikelihood Bartholomew retained an attorney without church assistance or whether his attorney would have thought to negotiate a private, sealed plea and probation without the political clout of the church. Both Glimesh and Foley assured him it was true. Zack turned to the jury and rolled his eyes. “No more questions,” he shrugged.

  After Foley’s cross-examination, Judge Perry adjourned for the day.

  ***

  For his first witness of the eighth day of the trial, Walsh called his investigator, Parks, to the stand. A computer and monitor were set up beside him.

  Parks was asked about his experience and credentials. It became quite obvious he testified in court many times before this appearance. Parks testified he was engaged to conduct surveillance on the Tracey family and their attorney. Zack jumped to his feet.

  “What is the reason for surveillance of this unfortunate family and what is the relevance of testimony based on that surveillance?”

  “I’ll show relevance, Your Honor. As I indicated, previously, it goes to credibility.”

  “Your Honor, I demand an offer of proof outside the presence of the jury,” Blake argued.

  “No, I don’t think so, Mr. Blake. Mr. Walsh, I’ll allow it, but be careful. Do not step on the integrity of these proceedings,” Perry ordered.

  “Thank you, Your Honor.”

  Walsh qualified Parks and reviewed his curriculum vitae, discussing his experience at conducting surveillance. Parks set up the computer and inserted a flash drive. On the screen, Jake and Kenny played in a park. They were, in various clips, throwing a ball back and forth, wrestling each other, playing tag, seemingly having a great time. The date at the bottom of the screen was August 16, four months after the Bartholomew incident. The video’s purpose was to demonstrate the boys weren’t sullen and angry on a 24-7 basis.

  Zack wasn’t surprised by the presentation. Insurance companies used these types of video often. Investigators were instructed to conduct surveillance until they found an opportunity to cherry-pick one brief happy moment and use it against someone who claimed depression. They would video a disabled worker taking out the garbage or carrying groceries as if these moments somehow proved an ability to work. These videos were misleading and despicable, but they were often effective in front of a jury.

  The scene switched to the Tracey’s Farmington home. The date was two months before the start of the trial. The camera was placed on an outside window and peeped into the house. Zack, Jennifer, and the boys were having what appeared to be supper. Everyone seemed to be having a jolly time. The scene jumped again, to later that evening. Zack and Jennifer were on the couch, facing each other, Jennifer’s hand in Zack’s. Blake jumped to his feet, trying to ignore gasps and chuckles from the jury.

  “What is the relevance of this, Your Honor?”

  “Turn it off, Mr. Walsh,” Perry ordered. “What is the relevance of this portion of the presentation?”

  “Motive, Your Honor. This jury should know the only reason that Mr. Blake is pursuing this matter is because he has a personal agenda in pursuing the widow Tracey.”

  Zack tried to remain calm. He was losing the battle. “I’m not the one pursuing this matter. Jennifer Tracey and her sons are. There is no personal relationship depicted in this presentation and, besides, personal relationships are not the business of this court, this jury, or you! These videos are actionable invasions of privacy.”

  “Sue me!” Walsh mocked. “You’ll sue anybody.” The jury and the gallery chuckled at the comment.

  “Gentlemen, I’ve heard enough. I agree with Mr. Blake. This portion of the presentation is excluded. The jury will disregard,” Perry ruled.

  “But, Your Honor . . .” Walsh whined.

  “Mr. Walsh. I have ruled. Say another word and I’ll exclude the entire presentation,” Perry warned.

  Walsh knew when to sit down and shut up.

  “Are you through with this witness?” Perry grumbled.

  “Yes, Your Honor.”

  “Any questions, Mr. Blake?”

  Blake didn’t respond. He sat at the counsel table staring into space.

  “Mr. Blake?” repeated Judge Perry.

  Zack snapped to.

  “Yes, Your Honor?”

  “Do you wish to cross-examine this witness?”

  “I sure do, Your Honor, thank you.”

  Zack quickly recovered from his momentary lapse in concentration. He tore into Parks. Did he know invasion of privacy was an actionable tort? How much was Parks’ firm paid for its services? Did the church or the priest pay the bill? Was his firm retained before or after this lawsuit was filed?

  “Mr. Parks, if the church didn’t know about Bartholomew before this lawsuit, why did they hire a private investigator?”

  “I don’t know,” Parks admitted.

  Blake moved in for the kill. He asked Parks how long he tailed Kenny and Jake.

  “We conducted intense surveillance over three months,” Parks recounted, referring to his notes.

  “And how many drives were used during this surveillance?”

  “I’m not sure, maybe six?”

  “And what was the duration of each drive?”

  “I don’t understand the question.”

  “No? How many hours of record time on each drive?”

  “Oh! We use four-hour drives.”

  “Let’s see now.” Zack calculated. “Six drives, four hours per drive
, right?”

  “Right.”

  “Over these three months, how many days did you follow the boys?”

  “May I refer to my surveillance notes?”

  “Absolutely.” Zack turned to the jury and smiled.

  Several members smiled back.

  “Over the ninety days, we were following them for approximately forty-five days.”

  “And as a result of those forty-five days, you were able to obtain these couple of moments of activity?”

  “Yes, well, no. I mean we recorded over several days. We probably shot a little bit every day we had a clear view.”

  “Would you please reset the drive to the beginning?”

  “Certainly.” Parks left his chair, approached the computer, and reset it.

  “Play the video, again, please.”

  Parks pressed ‘play.’ Once again, the video of Jake and Kenny playing was shown. Zack did not watch. Instead, he focused on the second hand on his watch. Various members of the jury noticed and studied their own watches. The machine stopped.

  “Twenty-five seconds. Twenty-five seconds!” He repeated and turned to face the jury. “Would you agree with that, Mr. Parks?”

  “More or less,” Parks conceded.

  “Which is it, more or less?”

  “The presentation is twenty-five seconds long,” Parks acknowledged.

  “Let me get this straight. You recorded activity for forty-five days and found twenty-five seconds of these two boys being happy?”

  “Well . . .”

  “Do you have the other flash drives?”

  “What other flash drives?”

  “The other forty-four minutes and thirty-five seconds.”

  Parks shifted in his chair and looked downward. “No, I don’t have them.”

  “Where are they?”

  “I don’t know, back in the office, I suppose.”

  “Why don’t you tell this jury what’s on those drives, or does Judge Perry have to order you to bring them in and sample them for us?”

  “There is . . . uh . . . more video of the boys, similar to this one.” He looked over at the monitor.