Our initial response to reports in The Times that a federal grand jury is investigating Cardinal Roger M. Mahony for his alleged role in covering up child molestation by priests is to applaud prosecutors for their sustained interest in the long-suffering victims. The grounds on which those efforts are said to be based, however, give us pause. Sources told reporters Scott Glover and Jack Leonard that the grand jury’s work centers on whether Mahony or other church officials violated a law prohibiting schemes to “deprive another of the intangible right of honest services.”
The “honest services” doctrine has been used to help convict the likes of Jack Abramoff, Randy “Duke” Cunningham and Jeff Skilling; in these cases, juries concluded that misdeeds denied the public or shareholders of their right to the honest work of government or businesses. That’s the intended use of the section, which was added to federal law after a 1987 ruling by the Supreme Court made it harder to prosecute public officials for mail fraud. Appropriately, the section sits in a chapter of the code devoted to fraud -- healthcare fraud, securities fraud and so on. Its application against a cardinal in the oversight of an archdiocese is another matter. Laurie Levenson, a law professor at Loyola Law School, aptly called it “creative lawyering.”
There is room in the legal profession for prosecutors to think broadly about their reach, and society is often the beneficiary. Faced with recalcitrant Southern judges and juries who once refused to convict whites who attacked blacks, federal authorities brought assault cases as violations of civil rights laws. Faced with acquittals in the state trial of the Los Angeles police officers who beat Rodney King, federal prosecutors wisely charged the officers in federal court with violating King’s federally protected right to be kept from harm while in custody. Two defendants were convicted.
But U.S. Atty. Thomas P. O’Brien has previously demonstrated a worrisome creativity. Late last year, O’Brien’s office plumbed jurisdictional and logical limits to try a Missouri woman who helped play a cruel joke on a vulnerable teenage girl. In that case, the woman created a MySpace page for a fictional 16-year-old boy, who flirted with the girl and then dumped her. The girl committed suicide. Appropriately outraged, O’Brien took the novel approach of charging the woman with violating MySpace’s terms of access. A jury rejected the most serious charges and settled for three misdemeanors.
Here too we worry about the elasticity of the law. If Mahony conspired to protect abusive priests, charge him with conspiracy. If he blocked inquiries, charge him with obstruction. But his crimes, if any, are easily defined under tested laws, not as vague denials of service.