Archdiocese Is Paying Judge to Assess Files

The Archdiocese of Los Angeles is paying $350 an hour to the retired judge who will decide if the Roman Catholic Church must turn over to prosecutors the personnel files of priests accused of molesting children.

The files are at the center of a legal dispute over access to nearly 2,000 pages of church documents subpoenaed by the Los Angeles County Grand Jury a year ago. They have been central to the criminal investigation of sexual wrongdoing by priests in Los Angeles.

Lawyers for the archdiocese challenged the release of those records, saying that to do so would violate fundamental tenets of the faith, including the privilege covering communication between a penitent and a confessor.

Instead, in an agreement signed by the prosecutor and attorneys for the archdiocese and accused priests, retired Los Angeles County Superior Court Judge Thomas F. Nuss earlier this year assumed the job of examining those legal challenges.

Part of that agreement is that the church pays Nuss’ hourly fees. The archdiocese has paid $12,500 to date. Nuss has yet to formally rule in the case.

The revelation raised concerns among some defense attorneys about the appearance of propriety in a retired judge receiving payments from a party in a case that he is deciding.

“The truth of the matter is that the judge is not going to be influenced,” said James E. Blatt, a criminal defense lawyer in Encino. “However, that is not the issue -- the issue is the appearance of impropriety.”

Nuss was appointed by Los Angeles County Superior Court Judge Dan Oki, who supervised the criminal courts until this month. Nuss and Oki both declined to comment.

Several criminal defense lawyers interviewed Friday said they have never heard of parties who are potential defendants in criminal actions paying a private judge to resolve disputes with prosecutors.

The state law cited by a court spokesman early Friday to support the arrangement applies to civil litigation, not criminal matters. The proceeding is part of the ongoing criminal investigation into child sex abuse accusations.

Prosecutors and lawyers for the church said they agreed to the arrangement and see nothing improper about its terms.

Victims of childhood sexual abuse became “very cynical” about the justice system after the U.S. Supreme Court last month threw out hundreds of old molestation cases and convictions because they had been filed and tried past legal deadlines, said Lee Bashford, director of the Orange County chapter of SNAP, the Survivors Network of Those Abused by Priests.

Bashford said he wants an explanation from prosecutors.

“An arrangement like this ... sends a message to some that the system is kind of rigged,” he said. “If this prevents one person who was abused as a child from coming forward ... [it] may need to be rethought.”

Retired judges commonly are used to resolve disputes over the exchange of documents in civil cases throughout California and are paid by the litigants. Such special masters are occasionally used in criminal cases, but rarely if ever paid by the litigants, experts said.

In Boston, where the molestation scandal involving priests first broke, all litigation over the contents of priest personnel files has been decided by a regular state judge, said David Deakins, who prosecutes priest sexual abuse cases in Boston. “In Massachusetts, special masters are quite rare and are always paid by the court,” he said.

J. Michael Hennigan, lawyer for the L.A. Archdiocese, said he “felt a little chaffed” about being handed the entire bill for Nuss’ services. “Judge Oki basically said he wanted to refer it out, and he wanted us to pay. We said how about if we split it.”

“It was pretty clear that the district attorney was not going to pay for it,” he said.

Hennigan said he did not protest Nuss’ appointment to the case, although he had no say in his selection. “It seemed odd to me at the time,” he said.

A retired judge would have more time to examine the files and contemplate the issues, a high priority for the archdiocese, Hennigan said. “It was pretty clear that Judge Oki did not want to wade through all the papers and go through all these files.”

The pay arrangement has no effect, he said. “It’s court-ordered. We didn’t pick Judge Nuss. We don’t have any control over him. We can’t fire him.”

In a prepared statement, Los Angeles County Dist. Atty. Steve Cooley said, “I am outraged anyone would dare to impugn the integrity of the Presiding Judge of the Criminal Division of the Superior Court, Judge Nuss, the judge assigned to this case, or the fine prosecutors who have worked so hard on this case.

“It is well within the court’s discretion to assess costs against a party for certain extraordinary proceedings. Because this subject pertains to Grand Jury litigation, I will not elaborate further at this time. However, there is nothing to suggest that Judge Nuss has been compromised in any manner whatsoever by this arrangement ordered by the court. Our overall efforts in pursuing these prosecutions are well documented as highly professional, vigorous and ongoing.”

Peter G. Keane, dean of Golden Gate University School of Law in San Francisco, said he doesn’t believe that taxpayers should pay for months of litigation over privilege claims made by the archdiocese that he considers suspect at best.

In fact, Keane accused the court of “coddling” the archdiocese by letting the privilege challenges drag on. “There is no likelihood that someone would have penitent [information] in a personnel file,” said the former public defender. “Had I been the judge, I would have just said turn over the stuff.”

But J. Clark Kelso, a professor at McGeorge Law School in Sacramento, said he finds the fee situation “very troubling.... If the court needs help in resolving a tough issue, then the court should pay for it.”

Veteran criminal defense lawyer Harland W. Braun said he had never heard of parties paying a retired judge to preside over a criminal case. “It just sounds terrible,” he said. And the fact that Cooley signed on “makes it even worse.”

“The D.A. should have insisted that a judge who is paid by the state” oversee the proceedings, he said.