The Vatican says society is to blame for the epidemic of pedophilia in the Catholic Church, in recent statements from the Pope and several American bishops. At City of Angels Blog we argue that pedophiles became empowered after seeing Catholic priests get away with raping children for decades, and as a result perpetrators have become more aggressive and sex crimes against minors have increased in the 21st Century.
For example, on March 27, 2009, Melissa Huckaby interrupted preparations for a Sunday School class she taught to take Sandra Cantu into the basement of Clover Baptist Church in Tracy, California, where she raped and killed the 9-year-old girl. The murder weapon was the rolling pin used to prepare communion wafers for the parish, according to testimony before the Grand Jury in San Joaquin County, in July 2009.
A half-hour drive from the murder scene, a trial was winding down in the case of Santillan versus Bishop of Fresno, and throughout the state news of the trial- where bishops, priests, even a Cardinal testified- dominated the media. At City of Angels Blog we've run excerpts of Bishop John Steinbock’s testimony in Part one and Part two of this series, titled "What Melissa Huckaby Heard."Part Four will be the March 17, 2009, testimony of Cardinal Roger Mahony* and for an idea of how the cross examination of the Cardinal played out click here and watch the Abbott and Costello “Who’s On First” routine on YouTube, as the questions and answers between plaintiff attorney Jeff Anderson and Cardinal Mahony follow a similar pattern.
Today in Part 3, we're running the trial transcript from March 26, 2009, the day before Melissa Huckaby gave in to her compulsions and took Sandra Cantu to the church where Huckaby's grandfather was pastor and killed her. Outstanding in the proceedings March 26, and reported widely in the news that day, was the testimony of Father Roderick L. Craig, who grew up with the Santillan Brothers in Wasco. Craig got on the stand and contradicted his own previous testimony in deposition, throwing a glitch into the plaintiffs’ case. In fact Father Craig’s busy schedule caused plaintiffs to have to interrupt their case to make time for his testimony.Father Craig is currently a priest at St. Mary’s Catholic Church in Visalia, California, where the website states : "Fr. Craig began his journey in recovery from alcoholism in 1987 and had his first stay at Guest House in Rochester MN in 1990. Fr. Craig returned there in 2001, 2002, & 2003."
Below is the trial transcript from that one day of Santillan vs. Bishop of Fresno. You can click the pages scanned in this poast to enlarge and read, in order to see names of the parties and scheduled events that day. {Quotes of interest appear in bold italics in the transcript below.)
MARCH 26, 2009
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF FRESNO CENTRAL DIVISION
Before the Honorable Donald S. Black, Judge
Department 97B
GEORGE SANTILLAN, HOWARD SANTILLAN, Plaintiffs
Case No. 03CECG04480
(Thereupon the following proceedings were held in the presence of the Court, Counsel, and Parties:)
THE COURT: We'll be on the record with counsel present. We have a few issues we need to discuss this morning. The first being the -- whether evidence of massages, which were allegedly given by Monsignor Herdegen, as I recall, in the early 1950s should be admitted. Who's going to be arguing on behalf -- well, let's start with Mr. Anderson.MR. ANDERSON: Thank you, Your Honor.
THE COURT: Because of the way this case has been presented, I keep thinking that we have two people representing two plaintiffs rather than one person representing one plaintiff and one person representing another plaintiff, but go ahead.
MR. ANDERSON: No, I understand. In some ways the evidence is inseparable, so it's –
THE COURT: Right.
MR. ANDERSON: -- you know. Your Honor, I appreciate the Court's grappling with this issue because it's been before the Court for almost throughout this trial. And the question, of course, has always been, is it -- is it probative? And is it – does prejudice outweighs the probative value? And yesterday, Your Honor, it became particularly well focused when the testimony of Letha Santillan was elicited from counsel. And in it she was asked, "Was there an incident when Monsignor was at your house, and you were there standing by your son Leonard; and Monsignor rubbed your son's leg and Leonard told him to get his hands off?" They offered this evidence to presumably imply and argue that Mrs. Santillan bears some legal fault.
THE COURT: That that conduct should have put her on notice that something was going on, something –
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Evidence in the '50s that Monsignor Herdegen was massaging youth, rubbing them…
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MR. ANDERSON: Is there any other reason for which to offer that but to make that argument and/or inference to the -- to the trier of fact? I think not. And so they're entitled to clearly argue to this jury inferentially, given the fact the Court has allowed them to interpose an affirmative defense of comparative fault, that she, that is, Mrs. Santillan, should have suspected sexual abuse or was otherwise on notice of sexual abuse, and Monsignor Herdegen thus bears some legal responsibility. Given that and -- and the other reasons we'd already offered earlier before it came in, we believe that this evidence in the '50s that Monsignor Herdegen was massaging youth, rubbing them, the same conduct elicited today, rubbing them in areas --
THE COURT: Well, what provides -- what evidence is there that the Diocese had notice that that was going on?
MR. ANDERSON: Mr. De Marco's going to -- going to tell you that.
THE COURT: All right.
MR. ANDERSON: And so I'll, with that in mind, just say, Your Honor, that it becomes particularly, if not acutely, important to allow us to admit this evidence as both relevant, as probative. And the extent to which the Court was concerned about prejudice, them having opened that door, I think, you know, they can't have it both ways. So I have nothing more to say about that, but Mr. De Marco does.
THE COURT: All right.
MR. DE MARCO: There's two ways in which the Diocese knew of that conduct. First of all, Mr. McDaniel's testimony is that the rector of the seminary, Monsignor Galvan, witnessed it. So he, first of all, is a managing agent. I don't think there's going to be a lot of dispute on that. So his knowledge is the knowledge of the Diocese. But beyond that, we asked Cardinal Mahony on the stand if a rector of a seminary was aware of conduct suspicious of abuse, would there have been an expectation that the rector would report it to the higher-ups. And I don't think his answer was in any way qualified on that point.
THE COURT: And just so that I'm clear and that the- kind of the legal hook for this is provided in your view through the Doe case where it says, "In determining" – this is at page 547 -- "In determining whether an actor was in possession of the constructive knowledge described by the reason-to-know standard, we ask whether, after examining the facts in the actor's possession, a reasonable person of ordinary intelligence -- or, in this particular circumstance, a person of superior intelligence -- would have inferred the existence of the ultimate fact at issue or regarded its existence as so highly probable as to conduct himself or herself as if it did exist.
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MR. DE MARCO: Mr. McDaniel in his declaration indicates he was at that seminary, I believe it was, from 1949 to 1952. So this is before any of our clients were abused by a period of a few years, six years, seven years. So it certainly predates.
THE COURT: So the theory would be that the Diocese had notice and should have done something about Herdegen at that time?
MR. DE MARCO: Absolutely.
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MR. DE MARCO: Exactly, Your Honor. Cardinal Mahony's testimony was, again, abundantly clear on that point. It was viewed as outrageous conduct. Investigation would have ensued, but in and of itself, this should have never happened. t would have been outrageous.
THE COURT: And what are the dates that we're talking about here?
MR. DE MARCO: Certainly, Your Honor. Mr. McDaniel in his declaration indicates he was at that seminary, I believe it was, from 1949 to 1952. So this is before any of our clients were abused by a period of a few years, six years, seven years. So it certainly predates.
THE COURT: So the theory would be that the Diocese had notice and should have done something about Herdegen at that time?
MR. DE MARCO: Absolutely.
THE COURT: All right. Ms. McGuire, given your question to Mrs. Santillan yesterday, why doesn't this evidence come in?
MS. McGUIRE: Well, Your Honor, the -- I think Leonard --
THE COURT: In other words, if that conduct -- if your claim is that conduct would have put Mrs. Santillan on notice that something was going on, why doesn't it also work for the plaintiffs?
MS. McGUIRE: That's not what our claim is, Your Honor. Our claim is that through a series of events, Mrs. Santillan was approached and things went through her mind in terms of different conduct like the candy. And it was put in context of different things that she was made aware of for -- for the purpose of -- I mean, putting a hand on a knee is not evidence of sexual abuse.
THE COURT: Well, why did you ask the question?
MS. McGUIRE: I asked the question because there was a series of contexts in which she and her husband discussed some behaviors that they talked about, and it wasn't to say that touching somebody's leg is sexual abuse. And the whole –
THE COURT: Wasn't it to suggest that that should have put them on notice that something was happening?
MS. McGUIRE: It was to suggest that there were -- it was to suggest that Monsignor Herdegen was at their house frequently and interacted with their family frequently and that -- I mean, the argument from the plaintiffs is going to be because the Santillans were at the rectory, she should have known certain things. Monsignor Herdegen was at their home frequently, so that's -- that was the intent of bringing this information out is to just show that he was there, he interacted with the family. She observed certain things. There was a lot of interaction between her and Monsignor Herdegen and the family and Monsignor Herdegen.
THE COURT: Okay.
MS. McGUIRE: So I think that 340.1 requires more. And to bring in the -- I mean, touching somebody's leg and then this whole massage issue are two completely different situations. And --
THE COURT: Well, it's a difference of degrees.
MS. McGUIRE: I don't think so, Your Honor. I don't think it's completely different. I think you're talking apples and oranges here. I mean, this is -- has nothing to do --
THE COURT: I think you're talking Fujis and Delicious.
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MGGUIRE: When asked "So, Cardinal, you're saying if you had heard in the 1960s, as a supervisor of priests, that Monsignor Herdegen was engaging in alcohol massages of children, of minors, that that would not have raised in your mind the suspicion that he was sexually molesting kids?" And he said, "It's hard to go back after all these years, but in those days, that was not in somebody's forethought.”
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MS. McGUIRE: I don't think that we are. And I think the representations about Cardinal Mahony's testimony are a little bit inaccurate in terms of what he said. Because he -- he put it in the context of the -- the questions were asked in the context of the 1960s. And when asked -- and this is at page 147 of the transcript: "So, Cardinal, you're saying if you had heard in the 1960s, as a supervisor of priests, that Monsignor Herdegen was engaging in alcohol massages of children, of minors, that that would not have raised in your mind the suspicion that he was sexually molesting kids?" And he said, "It's hard to go back after all these years, but in those days, that was not in somebody's forethought that it was a sexual thing. Today there would be no question about it. But I'm just saying, going back 40 to 50 years, that was not the kind of general understanding."
THE COURT: Well, but Cardinal Mahony -- like all of the testimony in this case, Cardinal Mahony's testimony is subject to more than one interpretation, and that will be up for the jury. My role is to determine whether there is a view of the evidence, a credible view of the evidence, that supports this evidence coming in from -- from a relevancy perspective.
MS. McGUIRE: Well, I would disagree completely, Your Honor, that having -- asking Mrs. Santillan those questions would in any way infer that that was sexual abuse. It was to infer that there was a conversation and contact with Monsignor Herdegen in their home.
THE COURT: All right. Well, this issue has become clearer to me since trial started. And I'm going to, at this point, overrule the objections to the evidence, allow it to be presented. It seems to me that having reread the Doe case now and having heard Cardinal Mahony's testimony and also Mrs. Santillan's testimony, that evidence that a managing agent saw Monsignor Herdegen massaging young boys in the early 1950s is relevant under Section 340.1 to the issue of whether the Diocese had notice of -- had notice of unlawful sexual conduct by Monsignor Herdegen. So the relevancy and objections will be overruled, and the evidence will be admitted, subject to any other objections as we saw yesterday.
MR. DE MARCO: Thank you, Your Honor. One practical point, then, on that. We certainly have the portions of Monsignor Herdegen's videotaped deposition already separated out that we had previously designated. That can be shown this morning. Mr. McDaniel lives in Murrieta, which is just north of San Diego. We can certainly have him here first thing Monday morning. Getting him here today is a little challenging.
THE COURT: All right.
MR. DE MARCO: Thank you, Your Honor.
THE COURT: Who wishes to argue the issue related to the motion to amend for punitive damages -- well, why don't we start with Mr. Anderson again.
MR. ANDERSON: Your Honor, I -- you'll recall that when it was first raised at the start of this trial that the affirmative defense had not been interposed by reason of the failure of an Answer --
THE COURT: I know that that argument's been made.
MR. ANDERSON: I know.
THE COURT: I don't see the issues as similar.
MR. ANDERSON: No. Okay. I understand. I just wanted to note that as soon as it came up, we put the Court on notice that, you know, we intended to do this. Okay.
THE COURT: On the first day of trial.
MR. ANDERSON: Yeah, on the first day of trial, absolutely. And so it was, frankly, responsive to them. So if we had intended to do it before, then because they had answered, it would have been our burden to bring a motion.
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DeMarco: We're getting new affirmative defenses asserted the first day of trial. They've known we were seeking ratification for quite some time before that.
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THE COURT: How does the fact that they hadn't answered affect your right, or your ability, to allege a punitive damages claim?
MR. ANDERSON: It -- it didn't, Your Honor, but from a strategic standpoint, we had a situation where we didn't have a comparative fault being analyzed. And it was our judgment that, given -- given that, that we chose to keep it contained within the case as it was pled. And it was a strategic move that was our choice, and we take responsibility for that.
THE COURT: All right.
MR. ANDERSON: Having said that --
THE COURT: This wasn't a matter of oversight; you made a conscious decision not to allege punitive damages until the first day of trial?
MR. ANDERSON: I'm aware of the fact that we have a -- fact that we have a right to move to amend the Complaint, and I'm aware of the fact that we chose not to.
THE COURT: Okay. Go ahead.
MR. ANDERSON: And -- and I'm also aware of the fact that as soon as they asked for leave, we felt that it was a time to ask -- have us ask for leave. And the burden is upon us to show, at least make a prima facie showing, that there's clear and convincing evidence of ratification, fraud, malice, deceit, or oppression. And I think the evidence before this Court establishes a prima facie showing that any and all of those elements exist.
THE COURT: What is that?
MR. ANDERSON: That there was notice of sexual -- suspicions of sexual abuse by Herdegen in the '50s, the '60s, '70s, the '80s, the '90s; that they made a choice, a conscious choice, to keep it secret, to not advise the parishioners, these plaintiffs or any others, that they knew. And they chose to conceal it. And that evidence is a wanton, willful indifference to the rights and safety of these plaintiffs and others. And that is the very purpose for which punitive damages were designed by this statute and in our common law. And --
THE COURT: Are you aware of any cases where a party has been allowed to amend to conform to proof to allege a punitive damages claim?
MR. ANDERSON: I --
THE COURT: Seems to me that's in a different category from most amendments to conform to proof because of the procedural issues related to punitive damages claims.
MR. ANDERSON: Your Honor, I -- I suspect that other counsel's looked at that, but I'm going to just tell you that I doubt there's much on this, because I think we're in uncharted territory. But if they have some law on that, they'll tell you. But I'm suspecting that usually this is done pretrial and the way it's expected to have been done. And so when we think about why it should be done here, I guess I would suggest to the Court -- and I don't mean to be flippant, but what's good for the goose is good for the gander here.
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THE COURT: Okay. I'm going to deny the [plaintiff’s] motion to amend to conform to proof regarding punitive damages
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THE COURT: I don't see the issues as being similar. You're talking about this business about comparative fault. I don't see the issues as being similar.
MR. ANDERSON: Okay. I'm going to reject that argument. I'm going to withdraw that one.
THE COURT: All right.
MR. ANDERSON: I'm going to take another attack on that.
THE COURT: All right.
MR. ANDERSON: What about this one: That we've heard so much evidence that if we had presented pretrial, the Court may have granted, and probably should have, that the prejudice to the defendants, if it is granted at this point, is nominal. If --
THE COURT: Don't you think the inability to voir dire the jury with respect to punitive damages is an issue?
MR. ANDERSON: Yeah, I think it is. I think it is. I think that would be -- but would you allow us to?
THE COURT: Not now.
MR. ANDERSON: No, no, if we had them in a punitive damages case, would you allow it?
THE COURT: Absolutely, yeah.
MR. ANDERSON: That would be -- that would be a concern, wouldn't it? If you had allowed us to voir dire on punitive damages because it was in the case, I think that would be a prejudice.
THE COURT: There's that issue. There's also the issue of bifurcation.
MR. ANDERSON: I was going to address that.
THE COURT: Uh-huh.
MR. ANDERSON: And -- because that's also a troublesome issue. And I was going to suggest that if the Court allows our motion to amend, that we submit the case on the tort theories; and then, after they come back and if they answer the questions in accord with liability, that we then do the mini arguments on the punitive damages.
THE COURT: So you'd suggest that the case be bifurcated now, near the end of the trial?
MR. ANDERSON: We've done that before, Your Honor, where the jury did not know punitive damages were in the case. In many courts bifurcation is favored on punitive damages, and so the jury --
THE COURT: It's mandatory here if it's requested.
MR. ANDERSON: And many times, if not most often, when I've seen this issue, Your Honor, dealt with it, the jury did not know punitive damages were in the case until they returned their verdict. And I was going to suggest that here. But I think the Court's concern is well-founded, and I'm troubled by it. I, frankly, am going to say no more.
THE COURT: All right.
MR. DE MARCO: The only --
THE COURT: Mr. De Marco?
MR. DE MARCO: -- other legal authority, Your Honor, the only circumstance that I'm aware of was in a case in Los Angeles in the Clergy I proceedings where a case that was set to go to trial a week and a half hence was – the amendment to the Complaint was allowed to allege punitive damages.
THE COURT: Just before trial?
MR. DE MARCO: Yes.
THE COURT: Not during trial?
MR. DE MARCO: So I'm not going to represent to the Court I'm aware of authority, an appellate decision or even a trial court decision, in my experience, that allowed for an amendment according to proof at the time of trial.
THE COURT: Well, don't you recognize the procedural issues that relate to this kind of an amendment as compared to any other amendment to conform to proof? Granted, the standard is a liberal one, but I'm wondering whether that applies in a situation where the request is to allege a punitive damage claim.
MR. DE MARCO: Yeah. I -- frankly, Your Honor, I had not thought about the issue of the voir dire to the jury. So -- and that is a troublesome issue. I think, in terms of the procedural issues of the bringing of such a motion, it is not -- first of all, the code doesn't say you have to bring it by a particular date. It does say by affidavits, but clearly, the intent there is that the evidence presented has to be admissible evidence presented to show that a plaintiff can meet the prima facie burden of showing clear and convincing evidence. With that said, so I think in terms of the way the statute is written procedurally, I don't think it precludes amending at trial. But I am also mindful, as Mr. Anderson is, of the need to voir dire a jury about punitive damages. I know we raised it before we brought the jury in, but obviously, it was still an open question understandably.
THE COURT: And there was no request --
MR. DE MARCO: You're absolutely right, Your Honor.
THE COURT: -- to voir dire on that issue.
MR. DE MARCO: So, you know, I don't know that I really want to say anything more on it. I mean, I -- I did have the gut-level reaction, as Mr. Anderson did, that we're getting new affirmative defenses asserted the first day of trial; you know, they've known we were seeking ratification for quite some time before that, which would be the first and foremost basis for the punitive damages here. So there wouldn't -- there was no surprise to them about what we would be asserting for punitive damages. And I think a view of the evidence is we have had clear and convincing evidence towards that, a view of that. But I am mindful of the voir dire, Your Honor. So I'm not going to say anything more.
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THE COURT: What is "this seminary issue"?
MS. McGUIRE: Well, the massage.
THE COURT: Oh.
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THE COURT: All right. Who's arguing this for the defense?
MR. WEAKLEY: I will, Your Honor.
THE COURT: Okay.
MR. WEAKLEY: Based on California Code of Civil Procedure 42514 and the Mary Hospital case, we believe that any effort to bring in punitive damages must be done pretrial. That's -- that's the law that we're aware of.
THE COURT: In these cases? In other words, is that a general --
MR. WEAKLEY: That's a general -- well, in religious --
THE COURT: Okay.
MR. WEAKLEY: -- corporation cases.
THE COURT: Right.
MR. WEAKLEY: 425 --
THE COURT: Because the procedure established by the statute --
MR. WEAKLEY: Under 42514 --
THE COURT: Yeah.
MR. WEAKLEY: -- which relates to religious corporations and corporations sole. So we believe that it has to be brought pretrial. Furthermore, this was not like when we moved to amend. It was absolutely inadvertent surprise and excusable neglect between the law firms and the transferring of the file. We established that when we were allowed to amend our Answer. his -- in this case, this is a deliberate tactical decision, as admitted by counsel. So based on that, Your Honor, we believe the plaintiffs should not be allowed to amend to allege punitive damages at this late stage, which is virtually the last couple of days before trial.
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'Your Honor, we've been laying a lot of foundation about this file throughout this trial that Bishop Steinbock had others and this file has been accessible to them throughout, Your Honor. We subpoenaed this file.'
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THE COURT: Okay. I'm going to deny the motion to amend to conform to proof regarding punitive damages, primarily because of the issue of prejudice. It does seem to me that when punitive damages are alleged, it is important for the parties to be able to question the prospective jurors during jury selection regarding their thoughts related to punitive damages, and that was not possible in this case. I therefore find that prejudice has accrued to the defense as a result of the failure to allege this claim previously. And in addition, it does seem to me that under the applicable statutes, it is contemplated that the issue of whether punitive damages will be allowed is something to be resolved pretrial on the basis of competent evidence presented through affidavits rather than during a trial. So for those reasons, the motion will be denied. What was the third issue?
MR. ANDERSON: I have one evidentiary issue that kind of dangled yesterday, and it pertains to one of the documents in the file, Exhibit 195. And this would be a memo to Bishop Madera that I had tried to introduce yesterday, Your Honor. And when the Court asked me was Mrs. Ramirez available, I wasn't sure and thought she may be, but she's not. And she's in Nevada, and she's outside of the jurisdiction. And so I'd like to offer -- there are several letters from her, but I think, given the objections yesterday and --
THE COURT: Well, all we know about this is that it's something that's in the file; right?
MR. ANDERSON: Well, we also have -- this is a memo to Bishop Madera from Mrs. Cecily Ramirez from his secretary that he testified about.
THE COURT: Well, this is -- actually, what this appears to be -- I don't know that we have any evidence as to what this is -- but what it appears to be is a memo typed by a secretary in the Bishop's office from a telephone call she received from Mrs. Ramirez.
MR. WEAKLEY: Your Honor --
THE COURT: We don't have any evidence of that --
MR. WEAKLEY: I'm not sure what exhibit we're even referring to.
THE COURT: 195.
MR. ANDERSON: 195.
THE COURT: -- which is the problem. We don't have any evidence. All we know -- all we really know is that this is a document which is currently in Monsignor Herdegen's file. That's all we know about this from an evidentiary perspective.
MR. ANDERSON: That it's addressed to Bishop Madera from [REDACTED] his secretary.
THE COURT: Well, we can see that by looking at it.
MR. ANDERSON: So given the -- given the offers of proof that I made yesterday, albeit unsuccessful yesterday, that this is a document kept in the ordinary course, that I laid the foundation he was the Bishop, that he had a secretary, that this memo evidences a phone conversation of a report -- now, keep in mind, I'm not offering it for the truth of the matter. I'm offering it for notice to the Bishop and -- and against a party opponent.
THE COURT: That gets you over the hearsay issue --
MR. ANDERSON: Okay.
THE COURT: -- potentially, but what we're dealing with here are authentication issues.
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MR. WEAKLEY: And I should make the record. The judge and both the attorneys for the defendants and Mr. Anderson and Mr. De Marco were back outside of the courtroom, and apparently Mr. Waters flashed Exhibit 169 up on the screen. Yesterday you said it was only up for two seconds; it was inadvertent.
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MR. ANDERSON: Well, I think they're not disputing authentication. I think we're disputing the foundation.
THE COURT: Well, we'll see --
MR. ANDERSON: Maybe I can find out.
THE COURT: I had understood that they were not disputing this was in the file, which is different.
MR. ANDERSON: Okay. Well, maybe I could find out what the objection is, if I'm over the hearsay. Is the objection authentication or foundation?
MR. WEAKLEY: Well, we're agreeing it's in the file. There are foundational -- that foundation is established, but there are other foundational questions. For example, we're speculating it's prepared by his secretary. Frankly, we don't know who prepared it, we don't know when it was put in the file, by whom. We don't know if Bishop Mahony ever saw it -- Bishop Madera saw it or it went to anybody else. So all those foundational issues are there. It's hearsay. Besides that, we're also making a 352 objection.
MR. ANDERSON: Well, if the objection is 352 --
THE COURT: 352, I would overrule. The other objections, I think, are weightier.
MR. ANDERSON: If I'm hearing counsel correctly, is it still foundational –
MR. WEAKLEY: It is a foundational issue.
MR. ANDERSON: -- just so I know? Your Honor, I'd offer a proof that the foundation has been laid to establish that it is a document kept in the ordinary course, that it is a relevant time frame in which complaint was made by Cecily Ramirez to Bishop Madera.
THE COURT: How do we know that? All we know about this document is that it is now in the file. We don't know when it was put in the file. We don't know who prepared it. Really, we don't know how it was prepared.
MR. ANDERSON: Well, Your Honor, it's their business record, kept in the ordinary course, and it would seem to me --
THE COURT: That's a hearsay issue. And I -- I'm accepting, without looking at this document too closely – I mean, if I were close to admitting it over these foundational objections, I would. I'm assuming it's being offered for the purpose of notice.
MR. ANDERSON: Notice only, Your Honor.
THE COURT: Hearsay's not really the issue now.
MR. ANDERSON: Okay.
THE COURT: The issue is authentication.
MR. ANDERSON: So let me -- let me just ask this question: Isn't their file, on their priest, which we have established foundation for, that this is their file maintained at all times and to the present, isn't the establishment of that in itself sufficient foundation to show that they received a letter of complaint that was memorialized by somebody who maintained that file and placed it in the file, as has been presented here today, sufficient foundation to show that there was notice to the corporate defendant, to the Diocese, of this particular information? Isn't that sufficient? And doesn't that then give us the opportunity, with a cautionary instruction, to just admit that exhibit as a part of this file with the cautionary instruction that it's offered for the only purpose of showing notice to defendant Diocese, which, of course, is central to the case? And so I'd ask the Court to consider that exhibit. There are others, but they could be cumulative. And I felt that of the other letters by her, this was the best shot.
MR. DE MARCO: Your Honor, if I could just add one point to that, then?
THE COURT: Uh-huh.
MR. DE MARCO: I think Evidence Code 1420, authentication by reply, applies here. The letter that Ms. Ramirez sends in is replied to by the letter that has already come into evidence that Cardinal -- Bishop Madera acknowledged.
THE COURT: Which exhibit is that, 196?
MR. ANDERSON: That's 204, Your Honor.
THE COURT: 204?
MR. DE MARCO: Is it the same?
MR. WATERS: No, Bishop Madera letter.
MR. ANDERSON: Excuse me.
MR. WATERS: In response is 196.
MR. ANDERSON: I'm sorry.
THE COURT: That's what I thought.
MR. ANDERSON: I'm sorry.
THE COURT: Did he testify that this was in reply to this memo?
MR. DE MARCO: I don't know that he testified that it was in reply, Your Honor, but there's no other letter. It's close in time. You're talking about a difference of a day, and it's the picketing letter he's referencing there. "We plan" – at the bottom of this exhibit, 195, "We plan" -- "they plan to picket the confirmation in Wasco." And his letter is, you know, this is just inappropriate to be picketing and threatening your Bishop.
THE COURT: All right. Mr. Weakley?
MR. WEAKLEY: My recollection is that Bishop Madera did not remember either of these documents --
THE COURT: Well, I admitted the letter.
MR. WEAKLEY: Over our objection.
THE COURT: Right. Well, and I may have admitted it based on -- based on his -- didn't he identify his signature, or something, on that that --
MR. WEAKLEY: I don't think it's signed, Your Honor. It just has his name on it. I, frankly, don't remember what the limited purpose of the admission was, but we would move to --
THE COURT: Well, whatever. It's in. So just dealing with the evidence the way it is, which is that 196 is in, what's the problem with 195?
MR. WEAKLEY: I'm sorry, I couldn't hear.
THE COURT: The state of the evidence is that 196 is in. It's in.
MR. WEAKLEY: Right.
THE COURT: So do you want to respond to Mr. De Marco's suggestion that 195 comes in under Evidence Code Section 1420?
MR. WEAKLEY: There's no direct evidence that it is in response to 195. Again, we're speculating that. There's no evidence that Bishop Madera had a conversation with Ms. Ramirez and prepared this letter based upon getting this memo that's 195.
THE COURT: Anything else?
MR. WEAKLEY: And speculation, Your Honor.
MR. DE MARCO: The evidence that I would just state, Your Honor, is it follows. They've got -- the letter we're attempting to admit is date -- or the memo is dated March 8th, 1984. His response is dated March 9th, 1984. It specifically references picketing. I mean, unless they can produce something else that says there was picketing threatened at Wasco any other time, I mean --
THE COURT: Here -- I'm going to take a look at 1420. My problem with 195 is that other than the fact this is something currently in the file, we don't have any testimony at all, any evidence at all, about what this is, how it was prepared, who prepared it. I suppose we could surmise certain things by looking at it, but we don't have a witness who's come in here and told us that he or she prepared this, what the circumstances were, when it was put in the file. So I'm going to look at 1420, and I'll reserve judgment on that. But at this point, I'm not inclined to admit it.
MR. WEAKLEY: Your Honor?
THE COURT: Yes.
MR. WEAKLEY: Your Honor, if I may just further, we're obviously speculating. There's a lot of speculation that Bishop Madera actually saw this. For all we know, he may have been told by somebody or asked by somebody to contact Ms. Ramirez and never saw this memo.
THE COURT: As of now, it's out. I'll give it some thought, but at this point I'm not inclined to admit it.
MR. DE MARCO: Thank you, Your Honor.
THE COURT: Anything else?
MR. WEAKLEY: Your Honor, but can I have just one moment?
THE COURT: Sure.
MS. McGUIRE: Your Honor, I'll just bring up, too, a logistics issue.
THE COURT: Okay.
MS. McGUIRE: We do have Father Craig here this morning. Mr. De Marco had e-mailed me last night -- I didn't get the e-mail until about 9:00, or so -- that they weren't going to call him. We are going to call him, and he rearranged his schedule again, for the third time, to be here this morning. Now, I don't mind if Ms. Delgado goes on first, which is their witness. It's just that in the past --
THE COURT: Is there a problem with taking Father Craig in the defense case this morning, given --
MR. DE MARCO: I think, Your Honor, Ms. Delgado's testimony is very brief.
THE COURT: Yeah.
MR. DE MARCO: I don't really see a danger of her going so as to impair -- I mean, I don't know how long they're preparing to spend with Father Craig.
MS. McGUIRE: Not long.
MR. DE MARCO: If he needs to leave here at 11:00, I don't see how there's really an issue.
THE COURT: No, we can put her on first.
MS. McGUIRE: No, if it drags out, which has been kind of a pattern in this trial --
THE COURT: Lately.
**************
THE COURT: Except for the fact I've had trouble reading the documents on the screen throughout the trial. I don't see how that one's more legible than the others. I haven't been able to read them until they've been blown up. Did anything get blown up?
MR. WATERS: No, Your Honor.
MR. WEAKLEY: That's the concern we had. We're seriously thinking about a motion for mistrial based on counsel's conduct. I'm trying to think of some form of relief we can request. One of them may be to preclude plaintiffs' counsel from using the projector anymore for their documents.
*********************
MS. McGUIRE: -- I would just ask that we stop her and put Father Craig on so he can get out of here.
THE COURT: I think that's reasonable, so we'll do that.
MR. ANDERSON: After Delgado, are you saying?
MS. McGUIRE: Well, it depends. If you're still going with Delgado at 9:45, I would ask that we start thinking – if, you know, if they -- unless they have five or ten more minutes --
THE COURT: Yeah.
MS. McGUIRE: -- I would ask that by 10:00 o'clock --
THE COURT: It sounds like her testimony is going to be less than a half-hour.
MR. DE MARCO: I think so, Your Honor.
THE COURT: So --
MS. McGUIRE: Okay. I wanted to bring it to the Court's attention. I don't want him to sit out there again all morning.
THE COURT: I appreciate that. I'll be mindful of that.
MS. McGUIRE: And we're trying to -- if we can get him on this morning and get the Morleys on, then with -- with the exception of now having to deal with this seminary issue, which, you know, we may need some time to do --
THE COURT: What is "this seminary issue"?
MS. McGUIRE: Well, the massage.
THE COURT: Oh.
MS. McGUIRE: Because they're going to bring in a witness, so --
THE COURT: Oh, I see. Right.
MS. McGUIRE: -- we've got to respond to that.
THE COURT: Yeah.
12 MS. McGUIRE: So --
THE COURT: Okay. Yes?
MR. ANDERSON: I just wanted to loop back around about this exhibit that we're talking about and your inclination. When you're thinking about this, Your Honor, we've been laying a lot of foundation about this file throughout this trial that Bishop Steinbock had others and this file has been accessible to them throughout, Your Honor. We subpoenaed this file. They produced this file as it was, intact. And to now let one of the key witnesses for foundation for this document -- to not let it into evidence to show notice because he's repudiated it is somehow – in applying the equities of evidence, notwithstanding the rules, they must favor the admissions. I'd like the Court to exercise the equities and the context.
THE COURT: I don't know that equity is an issue that pertains to admissibility of evidence.
MR. ANDERSON: It doesn't. But when it's a close call, Your Honor, in the context of that, I think every decision we make in a court does -- ultimately is grounded in that. So I just -- I wanted to throw it out there.
THE COURT: All right.
MR. WEAKLEY: Your Honor, I have another issue.
THE COURT: Okay.
MR. WEAKLEY: And it's -- something was brought to my attention after court yesterday, and I'm still trying to gather more information on it; but this has to do with what was claimed to be an inadvertent publication of a document that was not admitted into evidence while we're taking our --while the Court -- THE COURT: Right.
MR. WEAKLEY: And I should make the record. The judge and both the attorneys for the defendants and Mr. Anderson and Mr. De Marco were back outside of the courtroom, and apparently Mr. Waters flashed Exhibit 169 up on the screen. Yesterday you said it was only up for two seconds; it was inadvertent.
MR. WATERS: I believe I said it was under ten seconds. He asked for an estimate. I said five.
********************
This is really not different than somebody laying an inadmissible document in front of the jury while court's not in session.
THE COURT: Except that you can't read things on the screen very well.
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MR. WEAKLEY: What I've learned since, from talking to people who were in the courtroom yesterday -- and I said I want to follow up this some more -- is the document was flashed up on the screen more than one time, some people were saying two, maybe three times. One person says it looked like Mr. Waters was reading the document on the screen. It was up there long enough. I was told that people in the audience couldn't see the document; didn't know what it was. It was up there long enough that it could be read by the jurors. I'm really concerned about --
THE COURT: Except for the fact I've had trouble reading the documents on the screen throughout the trial. I don't see how that one's more legible than the others. I haven't been able to read them until they've been blown up. Did anything get blown up?
MR. WATERS: No, Your Honor.
MR. WEAKLEY: That's the concern we had. We're seriously thinking about a motion for mistrial based on counsel's conduct. I'm trying to think of some form of relief we can request. One of them may be to preclude plaintiffs' counsel from using the projector anymore for their documents. We're at the end of the trial now. It just seems so unfair to us that when we're not in the courtroom, things are being shown to the jury. This is really not different than somebody laying an inadmissible document in front of the jury while court's not in session.
THE COURT: Except that you can't read things on the screen very well.
MR. WEAKLEY: Well, we don't know that. My eyes aren't as good as some others, but the jury's --
THE COURT: I have a lot of trouble, really, until things are blown up. I really cannot read them from here, even from here, and they're further away than I am.
MR. WEAKLEY: Mr. Avila, I believe, told the Court yesterday and told us that what brought his attention to it was that jurors were looking up at the screen. And he looked over at the jury; he saw them looking at that. He looked up at the screen and saw the document. That's when he and Mr. Waters came back to talk to us.
THE COURT: Any comments?
MR. WATERS: Your Honor, if I may address it. Rob Waters for the plaintiffs. Yesterday I was redacting a document pursuant to the agreement, the stamp "for attorney-client eyes only." I was redacting that. When I hit the button, it flashed up for a moment. My estimate -- I stand by it -- under ten seconds. I'd say five. Nothing was blown up. It was immediately taken off, and thereupon notifying the Court. It was totally inadvertent. There was no intent behind it. And I apologized to the Court yesterday for the inadvertence. I apologized to counsel for the inadvertent mix-up, but I don't believe there is any prejudice. It was not up there long enough for anybody to read the content of the document.
THE COURT: Okay.
MR. ANDERSON: And if I could add, Your Honor, my counsel position at the table is the closest to the jury of all counsel, and the jury's another five feet from where I am positioned. And throughout this trial, I have not been able to read the document posted on the electronic board until they are emphasized. So I think that bodes the suggestion that as inadvertent as it was, it couldn't have been very visible, if at all.
THE COURT: Well, there's nothing -- there's no request for me to act on at this point. Mr. Weakley was just making a record, so --
MR. ANDERSON: I understand.
THE COURT: -- is there another issue?
MR. WEAKLEY: No, but I've been told by at least two people that the document was put up on the screen at least two times.
MR. WATERS: Your Honor, it was not put up on the screen two times. In removing it, it flashed. It's like this. If you want to --
MR. ANDERSON: Just leave it.
THE COURT: That's fine. Anything else?
MR. WEAKLEY: No, Your Honor.
THE COURT: Any other issues?
MR. WEAKLEY: Just be able to use --
THE COURT: Good. You've got three minutes. So we'll take about a three-minute break; and then, assuming all the jurors are here, get them out here.
(Thereupon a brief recess was taken.)
THE COURT: We ready for the jury?
MR. ANDERSON: Yeah.
THE COURT: Oh, we're missing Ms. McGuire.
MR. WEAKLEY: That's okay. She's taking care of some other business.
THE COURT: All right. Okay. Let's bring them in.
(Thereupon the jury returned to the courtroom, and the following proceedings were had:)
THE COURT: Good morning, ladies and gentlemen. Welcome back. Please have a seat, everyone. You folks have been great. I think we've started on time or almost on time every day of this trial. And believe me, that is unusual and sometimes very difficult to get 12 or, in this case, 15 jurors all here on time. You have been very punctual throughout this trial, and we all appreciate that. All right. Counsel and the jurors are present. And, Mr. Anderson or Mr. De Marco, are you ready to call your next witness?
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MR. ANDERSON: Your Honor. We'd like to call a Ms. Angela Trevino-Ernst.
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MR. ANDERSON: We are, Your Honor. We'd like to call a Ms. Angela Trevino-Ernst.
THE COURT: Ernst, okay. Ms. Ernst, would you raise your right hand please, face the clerk, and be sworn.
ANGELA TREVINO-ERNST, called as a witness by and on behalf of the Plaintiffs, having been first duly sworn, testified as follows:
THE COURT: Would you have a seat up here, please. And would you state your full name and spell your last name for us.
THE WITNESS: Angela Trevino-Ernst, E-R-N-S-T.
THE COURT: Thank you very much. Mr. Anderson, go right ahead.
DIRECT EXAMINATION BY MR. ANDERSON:
Q Should I refer to you as Ms. Trevino-Ernst? Is that --
A That's okay. Ms. Ernst is okay.
Q Okay. Your name formerly was Angela A Trevino Delgado?
A Trevino-Delgado, yes.
Q Ms. Ernst, I'd like to direct your attention to late 1979. And at that point in time, where were you? Were you the parishioner of a church?
A Yes, I was.
Q What church was that?
A Our Lady of Lourdes in Corcoran.
Q And how long had you been a parishioner there?
A All my life. That's where my parents raised me, in that church.
Lifelong Catholic?
A Yes.
Q And how many children do you have?
A Three, three boys.
Q And in 19- -- late 1970s, 1979, approximately how old were your boys?
A Well, my oldest one was born '67; the middle one,'68; and my baby was born '74. So in '79, like, maybe nine, ten years old.
**************
Q Okay. And then sometime shortly after Christmas, Ms. Ernst, did some information come to you that was upsetting?
MR. WEAKLEY: Objection. Relevance and hearsay.
THE COURT: The objections are overruled. This is received not for the truth, but to explain Mrs. Ernst's conduct. You may answer the question.
MR. WEAKLEY: Object as relevance.
THE COURT: Overruled.
THE WITNESS: Yes. A few months -- few months later, maybe by May, I -- my son mentioned to me that -- he comes to me and says, "Mom, would you believe me if I was to tell you that Monsignor kissed me in his -- brought me into the office and he -- he embraced me and he kissed me with his open mouth?”… he says that he wanted to leave and that Monsignor calmed him down or told him to just hold off or wait. And so he --wanting to obey the priest, he waited there in Monsignor's office. And Monsignor sat him on his lap. And, uh – and when my son sat on his lap, um, Mon- -- my son felt Monsignor getting a hard one.
Q Okay. And Ms. -- Ms. Ernst, after your son told you this, what did you do?
A First of all, I started praying, because I did not know -- I believed him -- I believed him. I didn't know whether to believe him because the priest --
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Q And in addition to being a parishioner at Our Lady of Lourdes in Corcoran, were you active in your parish?
A Yes, I was the Altar Society president for maybe two years or so.
Q Okay. In late 1979, were you and one of your sons engaged -- who was the pastor at your parish at that time?
A It was Monsignor Herdegen.
Q And in late 1979, did you and Monsignor -- excuse me, did you and your son, or one of your sons, were you engaged in some church-related activities with Monsignor Herdegen?
A Yes. Being the Altar Society president and doing fundraising for the church, because it needed new carpet, so we had a, um, tamale fundraiser. And so my morning started at 5:00 o'clock, or so, for the fundraiser.
Q Okay. And was that sometime shortly before Christmas of that year?
A Yes, it was the beginning -- it was either the latter part of November or the beginning of December. It was just before Christmas, because it was a Christmas fundraiser.
Q Okay. And then sometime shortly after Christmas, Ms. Ernst, did some information come to you that was upsetting?
MR. WEAKLEY: Objection. Relevance and hearsay.
THE COURT: The objections are overruled. This is received not for the truth, but to explain Mrs. Ernst's conduct. You may answer the question.
MR. WEAKLEY: Object as relevance.
THE COURT: Overruled.
THE WITNESS: Yes. A few months -- few months later, maybe by May, I -- my son mentioned to me that -- he comes to me and says, "Mom, would you believe me if I was to tell you that Monsignor kissed me in his -- brought me into the office and he -- he embraced me and he kissed me with his open mouth?" And he -- and then he says that he was scared and that Monsignor -- Monsignor calmed -- tried -- that -- I mean, he says that he wanted to leave and that Monsignor calmed him down or told him to just hold off or wait. And so he --wanting to obey the priest, he waited there in Monsignor's office. And Monsignor sat him on his lap. And, uh – and when my son sat on his lap, um, Mon- -- my son felt Monsignor getting a hard one. And so he got scared and told Monsignor that he had to leave.
MR. ANDERSON: Q Okay. And Ms. -- Ms. Ernst, after your son told you this, what did you do?
A First of all, I started praying, because I did not know -- I believed him -- I believed him. I didn't know whether to believe him because the priest --
Q Let me -- I understand, but I'm going to lead her a little bit, Your Honor.
THE COURT: Go ahead and ask your questions.
MR. ANDERSON: Q Okay. What --
A What did I do?
Q Yeah, what did you do after hearing this from your son?
A I made contact with, um -- with -- with Joanne Zuniga, because she was the -- she was one of the -- she held a high office there at the -- there at the church.
Q Can you spell Zuniga for the court reporter.
A Z-U-N-I-G-A.
Q And you say that she had a high office?
A Yeah, she was like the -- she was the one -- like, either the treasurer -- her and her husband, they clean the church; they helped the pastor. They helped the pastor. They did the -- the -- where the catechism, and so they handled all of that for -- for the priest.
Q Okay. And you went to her with this information?
A Yes. I went to her, letting her know what my son had told me, and she was the one that told -- that suggested for me to go to that -- for me to talk to Bishop Madera.
Q Okay.
A So I made the call to Bishop Madera, and he gave me a meeting, an appointment, with him within the first week, I'm certain. And so then when I went to talk to Bishop Madera --
Q So did you, then -- I guess after talking to Ms. Zuniga, you called and made an appointment with Bishop Madera; is that correct?
A Yes.
Q Okay. And did you go see Bishop Madera?
A Yes, I did.
Q Okay. And why don't you tell the ladies and gentlemen of the jury what you did, what happened.
**********
WITNESS: I mentioned to Bishop Madera that Monsignor Herdegen had invited my son into his – into his office and had embraced and kissed my son with the open mouth. And my son, trying -- he was -- being at that time ten years old, trying to -- being scared, not knowing what to do, he -- he tried -- then Monsignor said, "Just hold off," or, you know, "Just wait." And then Monsignor sat him on his --Monsignor sat my son on his front, on his private -- lap. And, uh, my son started feeling that he was getting a hard on. And so, um, that's when -- that's when my son felt he had to get away.
Q: And what did you do?
A What I did is I wrote a letter to Bishop -- to Monsignor, because that's what Bishop Madera had instructed me to do.
MR. WEAKLEY: Object. Hearsay. Relevance. Foundation.
*****************
A When I -- when I got to Bishop Madera's office, I told him what my son had told me and why I was there, because I didn't want any other altar boys to be abused like my son. And so I mentioned to my son -- I mentioned to Bishop Madera that Monsignor Herdegen had invited my son into his – into his office and had embraced and kissed my son with the open mouth. And my son, trying -- he was -- being at that time ten years old, trying to -- being scared, not knowing what to do, he -- he tried -- then Monsignor said, "Just hold off," or, you know, "Just wait." And then Monsignor sat him on his --Monsignor sat my son on his front, on his private -- lap. And, uh, my son started feeling that he was getting a hard on. And so, um, that's when -- that's when my son felt he had to get away.
Q And so you told Bishop Madera these things --
A Yes.
Q -- about what had happened --
A Right.
Q -- in his office --
A Yes.
Q -- at the chancery? And after having told the Bishop this, what was the Bishop's response to you?
A He apologized for -- he felt -- he was apologetic for what had happened to my son, and also said that he was going -- that he, Bishop Madera, was going to have to take it to the board because there had been other complaints, other objections -- other complaints about Monsignor Herdegen.
Q And --
A And for me to write a letter -- he asked me if I had spoken or if I had written a letter to Monsignor, and I said no. And so he wanted me to write a letter to Monsignor and send a copy of that letter to him, addressed to him. "Him," Bishop Madera. And that's what I did.
Q So did you, in fact, follow the instruction given you by Bishop Madera to write a letter to Monsignor Herdegen --
A Correct.
Q -- and send a copy to Bishop Madera?
A Correct.
Q And did you do that, then, right after this meeting with Bishop Madera?
A I did it the following -- that night or the following, mailed it out the following day.
Q And when you did, you addressed -- did you actually write two letters or one addressed to Monsignor Herdegen with "Bishop Madera" at the top?
A What I did is I wrote a letter to Bishop -- to Monsignor, because that's what Bishop Madera had instructed me to do. And so what I did is I wrote the letter, and on top I put, "To Bishop Madera. This is a duplicate," because it was a duplicate that he wanted -- that he wanted the letter – he wanted a copy of that letter. And I also did a personal note to him pleading for him --
MR. WEAKLEY: Object. Hearsay. Relevance. Foundation.
THE COURT: The objections are sustained.
MR. WEAKLEY: Move to strike.
THE COURT: The motion's denied.
MR. ANDERSON: Q I'm going to direct your attention to the file here. I'm going to move over here beside you, if I may. And I'm going to direct your attention to what we've already marked as an exhibit, A-1. Okay. This is just for purposes of identification. And this, I'll represent to you, Ms. Ernst, is the file of Monsignor Herdegen maintained at the chancery; okay?
A Uh-huh.
Q And I am opening the file, and in the file I'm directing your attention to Exhibit 167. Do you see that there?
A That is my letter to Monsignor Herdegen. And a copy of this letter went to Bishop Madera, and that's why I put -- made the note up, up on top, so he could see that this was a duplicate.
MR. ANDERSON: Okay. And for the record, Your Honor, this letter is already admitted into evidence.
THE COURT: As what exhibit?
18 MR. ANDERSON: Exhibit 167.
THE COURT: All right.
*************
Q Okay. And I'm showing you what we've marked for identification, Exhibit 168. What is 168, Ms. Ernst?
A This is a personal note from me to Bishop Madera, and pleading with him --
MR. ANDERSON: Just a moment.
MR. WEAKLEY: Objection. Hearsay. Move to strike.
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MR. ANDERSON: Q And at the time you wrote this letter on instruction from Bishop Madera, you were to write a letter to Monsignor Herdegen and also send it to him?
A Correct, to Bishop Madera.
Q And so in your pen, in your own hand, is that note to Bishop?
A Yes, to Bishop Madera.
Q This is -- can you read what that says at the top?
A Yes. It says, "This is a duplicate copy of the letter sent to Monsignor."
Q And with this letter, did you also transmit a note to the Bishop sending this letter?
A Yes, I did.
Q Okay. And I'm showing you what we've marked for identification, Exhibit 168. What is 168, Ms. Ernst?
A This is a personal note from me to Bishop Madera, and pleading with him --
MR. ANDERSON: Just a moment.
MR. WEAKLEY: Objection. Hearsay. Move to strike.
MR. ANDERSON: I just --
THE COURT: The hearsay objection is sustained, but doesn't seem to me that the testimony that's already been given was hearsay. So the motion to strike is denied.
MR. ANDERSON: Q I just want to ask you questions about the circumstance of you writing this note. Exhibit 168 is in your handwriting?
A Yes, it is.
Q And this is your name, Angela Delgado?
A Correct.
Q And the date on this -- when you sent Exhibit 167, did you take this same note and put it in the same envelope as you sent the letter to Monsignor Herdegen when you sent it to the Bishop?
A Yes, I did.
Q So this was included in the same mailing envelope to the Bishop as Exhibit 167; correct?
A Correct.
Q And sent by you to him; correct?
A Correct.
MR. ANDERSON: I would offer 168.
MR. WEAKLEY: Lacking relevance and 352 and in limine matter.
THE COURT: Overruled. 168 will be received.
(Thereupon Plaintiffs' Exhibit No. 168, a letter, was received in evidence.)
MR. WEAKLEY: And also foundation.
THE COURT: Overruled.
MR. ANDERSON: Q Now, Ms. Delgado, I'm going to direct your attention to Exhibit 167. And this one is a photocopy, it looks like, of the letter you sent to Herdegen; correct?
A Correct.
Q And at the top -- it looks like that's the original and that's easier to read -- that's your handwriting at the top?
A Correct.
Q If you can read this, I would like you to read for the ladies and gentlemen of the jury -- and read as slowly as you can for the court reporter -- what you wrote at the top to the Bishop, and then I'll have you read the rest of this for them; okay?
A May I ask --
MR. WEAKLEY: Objection.
THE WITNESS: -- for my glasses?
MR. ANDERSON: Oh, yes.
THE COURT: What's the objection?
MR. WEAKLEY: Which exhibit are we on?
THE COURT: 167.
MR. ANDERSON: 167.
THE WITNESS: Thank you.
MR. WEAKLEY: The objection would be cumulative and best evidence.
THE COURT: Overruled.
MR. ANDERSON: Q Okay. Ms. Ernst, why don't you just read Exhibit 167 to the jury, beginning at the top.
A (Reading.) "To Bishop Madera. This is a duplicate copy of the letter sent to Monsignor dated 5/14/80, 1980. "Dear Monsignor Herdegen: With God's love, my regret, and our concern for you and for other altar boys and parents that won't know where or what to do, not realizing God is real and Jesus is alive on earth and within our spirit. We know God's holy spirit leads us when we ask him in his name. St. John 14:14. I'm really brokenhearted" -- should have been brokenhearted -- says, "broken heart, but trusting in Jesus, that one of my sons came to me thinking I wouldn't believe him because you are our priest and he is a young boy that is still learning to live right with God in this world around us. He knows he wasn't interpreting wrong when you started embracing him and kissing him with your mouth open and your tongue. He was scared and realized he had to leave. But still obeying you to stay a bit longer and him not knowing what to do, but seeing that you continued to approach in another manner, he felt I had to know. "I hadn't said anything to anybody. I started praying, asking God to guide me his way. Monsignor, I have gone to talk to Bishop Madera about this matter. I'm sending him -- a copy of this letter to him. Before I went and had the pleasure of feeling God's spirit with us in his office and actually meeting our humble Bishop Madera, I had heard and talked to another close friend of mine where you had approached her son in a different manner. When my son came to me saying, 'Mom, would you believe me about this matter?' and then this other altar boy, former altar boy, running also scared to his mother, I felt your approaches were not of God but of flesh. His mother wanted to call the police on you, but she realized she would go to another church and change religions. I have asked her to pray for you and to forgive you, because we know that Jesus loves us and if we want Jesus to personally help us and forgive us, then we must forgive you also. Monsignor, may God pour a blessing of his wisdom and his spirit upon you for you and all of us to learn his chastisement for us to truly learn to obey him. In Jesus' name I ask, for his is the kingdom, the power, and to him be the glory, amen. Sincerely, with God's love, Angie Delgado."
Q And, Ms. Ernst, also with that letter you attach the note to the Bishop, Exhibit 168?
A Correct.
Q And I'll just -- and this is -- this is the original sent by you in your hand; correct?]
A Correct.
**************
“Please, please, don't just file this letter away.”
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Q Okay. If you would, please read that.
A (Reading.) "Personal note to you. 5/14/80. Bishop, I hope and pray that you and the board will listen and obey God, our true Father from heaven, and hear our cry and hurt hearts about Monsignor. Concerned about this matter and matters from previous objections about him, please, please, don't just file this letter away. Knowing and realizing you have a lot more work and business to take care, I know that God's spirit will be upon to care and be concerned for us here in Corcoran. Thank you, and may God bless you. Angie Delgado."
MR. ANDERSON: Thank you, Ms. Ernst. I have nothing further.
THE COURT: Any questions?
MR. DE MARCO: No further questions.
THE COURT: Mr. Weakley?
MR. WEAKLEY: No questions.
THE COURT: May this witness be excused?
MR. ANDERSON: She may.
THE COURT: Thank you very much, Ms. Ernst. You're excused. And thank you for coming.
THE WITNESS: You're welcome.
THE COURT: And I believe we're going to take a witness out of order at this point, or is there another --
MR. DE MARCO: One other piece that we would seek to offer, Your Honor, the five-minute-long video that we addressed previously.
THE COURT: The video of --
MR. DE MARCO: The seminary.
MR. WEAKLEY: I'm not sure what this is.
THE COURT: Yeah. Why don't counsel approach for a minute.
MR. DE MARCO: Sure.
(Thereupon a conference was held in the hallway, unreported.)
**********
THE COURT: So, once again, we're interrupting the plaintiffs' case for scheduling purposes to allow the defendant to call a witness. Father Craig, would you come on in, please. Would you raise your right hand and face the clerk right here and be sworn.
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THE COURT: All right. Ladies and gentlemen, we're going to take another witness out of order at this point. This is actually another defense witness. So, once again, we're interrupting the plaintiffs' case for scheduling purposes to allow the defendant to call a witness. And I understand that he is outside and will be in momentarily. Father Craig, would you come on in, please. Would you raise your right hand and face the clerk right here and be sworn.
(FATHER RODERICK L. CRAIG, called as a witness by and on behalf f the Defendants, having been first duly sworn, testified as follows:)[CofA: Craig is pictured at right]
THE COURT: And have a seat up here in the witness stand please. Good morning.
THE WITNESS: Good morning.
THE COURT: Would you state your full name and spell your last name, please.
THE WITNESS: Roderick Lewis Craig, C-R-A-I-G.
THE COURT: Thank you. Ms. McGuire, go right ahead.
MS. McGUIRE: Thank you, Your Honor.
DIRECT EXAMINATION BY MS. McGUIRE:
Q Father Craig, are you currently a Catholic priest?
A Yes, I am.
Q Okay. And where did you grow up?
A In Wasco, California.
Q Okay. And did you know the Santillan family?
A Yes, I did.
Q Okay. And did you go to the St. John's --
A I --
Q -- Church?
Yes, the St. John's Church, correct.
Q And when you were at St. John's, did you study to be an altar boy?
A Yes, I did.
Q Okay. And who trained you or taught you to be an altar boy?
A Monsignor Herdegen.
Q Okay. And while you were there and served as an altar boy, did you have an opportunity to serve together with Howard and George Santillan?
A I'm sure that I did. I don't recall; but yes, I'm sure.
**********
Q And when you were at St. John's, did you study to be an altar boy?
A Yes, I did.
Q Okay. And who trained you or taught you to be an altar boy?
A Monsignor Herdegen....
Q And when did you start Ryan Seminary?
A In September of -- it might have been August, but September of 1966.
Q Okay. And when you came home in the summers, would you serve daily Mass for Monsignor Herdegen?
A Yes, frequently.
*********************
Q Okay. What was -- in terms of your age, what's your date of birth?
A 9/22/51.
Q Okay. And in terms of where you were with Howard and George, what was the age difference?
A Howard was two years younger, and George was about two years older.
Q Okay. Now, was there a point in time when you actually went to the seminary?
A I went to Ryan Seminary in the fall of 1966.
Q Okay. And where is Ryan Seminary in comparison to where Wasco is?
A It's in the city of Fresno on the campus where San Joaquin Memorial is.
Q And would you come home in the summers from Ryan Seminary?
A Yes, I would.
Q And when did you start Ryan Seminary?
A In September of -- it might have been August, but September of 1966.
Q Okay. And when you came home in the summers, would you serve daily Mass for Monsignor Herdegen?
A Yes, frequently.
Q Were there occasions after Mass where Monsignor Herdegen would invite you to have breakfast with him?
A Yes.
Q And did you do that in the dining room of the rectory?
A Yes, I did.
Q I'm going to show you a diagram that's been marked as Defendants' Exhibit 50 -- or 526-A. Can you see that, Father Craig?
A Yes.
Q Okay. Do you recognize this as the layout of the rectory?
A Yes.
Q Okay. And is the dining area over here?
A That's correct.
Q And is that where you would have breakfast with --
26 A Yes.
Q -- Monsignor?
A Yes.
Q And would -- were you aware that a housekeeper was -- worked and a cook at the rectory?
A Yes, yes. Barbara Zeilman.
Q And would she prepare breakfast for you?
A Always.
Q And by the way, when was the new rectory church completed?
A 1963, I believe.
Q Okay. And so in 1963 -- well, in 1966 when you would come home in the summers and serve Mass, then on occasion you would go in and have breakfast?
A Correct.
Q Do you remember ever seeing Howard Santillan at the rectory?
A I have no recollection of him being there.
Q Do you remember ever seeing George Santillan at the rectory?
A No.
Q Now, when Howard Santillan testified, he said that you had gone away to the seminary, but you had taken him on a car ride probably when he was a freshman or sophomore in high school. What age would you have been when he was a freshman or sophomore?
A Either a senior in high school or I would have been a freshman at the Josephinum in Columbus, Ohio.
**********
Q Do you remember ever seeing Howard Santillan at the rectory?
A I have no recollection of him being there.
Q Do you remember ever seeing George Santillan at the rectory?
A No.
Q Now, when Howard Santillan testified, he said that you had gone away to the seminary, but you had taken him on a car ride probably when he was a freshman or sophomore in high school…. When you were at the Ryan Seminary, did you have a car?
A No….
Q Okay. So when Howard was a freshman or sophomore in high school, you couldn't have driven him anywhere, could you?
A No.
Q He also said on that car ride that you asked him if there was anything that he wanted to talk about or share or anything he wanted to get off his chest. Did you ever ask Howard that?
A I have no -- no -- I have no recollection of that.
************************
Q When you were at the Ryan Seminary, did you have a car?
A No.
Q How did you get back and forth?
A Usually by rides by other seminarians. I didn't have a car.
Q Did you typically -- how did you get to church to serve Mass?
A Rode my bike.
Q Okay. So when Howard was a freshman or sophomore in high school, you couldn't have driven him anywhere, could you?
A No.
Q He also said on that car ride that you asked him if there was anything that he wanted to talk about or share or anything he wanted to get off his chest. Did you ever ask Howard that?
A I have no -- no -- I have no recollection of that.
Q And you didn't go on a car ride with him in -- when he was a freshman or sophomore in high school; isn't that true?
A No.
Q You didn't even have a car then?
A I didn't have a car.
Q Now, Howard Santillan also said that he spoke to you about the abuse by Monsignor Herdegen at a funeral, Roque Borjon's funeral. Do you remember that?
A Yes.
Q Do you remember speaking to Howard then?
A Yes, I do.
Q Howard said that that was in the '95-'96. Was that when the funeral was?
A Roque died in 2003, summer of 2003.
Q Was that the first time you would ever have a conversation with Howard about the sexual abuse by --
A Yes.
Q -- Monsignor Herdegen?
A Yes.
Q Father Craig, I'm going to show you some photographs and ask you if you recognize the photographs. The first one I'm going to reference is Defendants' Exhibit 500. Do you recognize that photograph?
A It's the -- would be the west side to the rectory and church.
MS. McGUIRE: Okay. Your Honor, I would move Defendants' Exhibit 500 into evidence.
MR. ANDERSON: Is this something we've seen?
MS. McGUIRE: Yes.
MR. ANDERSON: No objection.
MR. DE MARCO: No objection, Your Honor.
THE COURT: It will be received.
(Thereupon Defendants' Exhibit No. 500, a photograph, was received in evidence.)
MS. McGUIRE: Q Okay. And I'm going to refer you to Defendants' Exhibit 502. Do you recognize that?
A It's the patio area of the rectory.
Q I'm also going to reference Defendants' Exhibit 511. Do you recognize that?
A Uh, yeah, that's the Santillans' home.
Q Okay.
A It's catty-corner from the church.
Q Okay. And also with Exhibit 512, Defendants' Exhibit, do you recognize that?
A Santillans' home.
MS. McGUIRE: All right. And I would move Exhibits 511 and 512 into evidence, Your Honor.
MR. ANDERSON: No objection, except as to time when this would be, time frame.
THE COURT: Well, that can be established in cross-examination, or we can ask the witness. Do you know when these photos were taken?
THE WITNESS: Um, the -- the patio was not the one – not when I was a kid growing up. Monsignor had a pond, like a little pond back there.
THE COURT: So this would have been after that?
THE WITNESS: After that, yeah.
THE COURT: After what time?
THE WITNESS: Well, Monsignor left in '77, like February '77. So sometime after that somebody else took out the pond. I don't know when.
MR. ANDERSON: Objection. Relevancy on that one.
MR. DE MARCO: And I join.
THE COURT: Sustained.
MS. McGUIRE: Q All right. With regard to Defendants' Exhibit 515, do you recognize that photograph?
A Yeah, that's the corner of the rectory, catty-corner from the Santillans' house.
Q Okay. And is that in virtually the same condition as you remember it?
A Yes.
MS. McGUIRE: All right. And we would move Exhibit 515 into evidence.
THE COURT: 515?
MR. ANDERSON: No objection.
MR. DE MARCO: No objection.
THE COURT: It will be received.
MS. McGUIRE: Thank you.
(Thereupon Defendants' Exhibit No. 515, a photograph, was received in evidence.)
MS. McGUIRE: Q Defendants' 516, is that also a picture of the front of the rectory?
A Yes, it is.
Q Do you recognize that as being how it looked when you were in the seminary and in Wasco?
A Yes. I can't remember when they put the grate up in the front, but yes.
Q And Defendants' Exhibit 518, do you recognize that?
A It's the school yard.
Q Okay. Now, the school -- at one time was the church where the school yard is?
A Yeah, there was -- the old church was between the two wings of the classrooms, so it's absent here.
MS. McGUIRE: Okay. Your Honor, we would move Defendants' Exhibit 518 into evidence.
MR. ANDERSON: The only objection is if it's the same as it was before '77, it's fine; if it's different, it's not. So --
THE COURT: Is it the same, Father Craig?
THE WITNESS: Um, I don't recall when they took the church out.
MS. McGUIRE: Q Was the old church -- let me ask this: Was the old church taken out after --
A After I was ordained.
Q Okay.
A I believe it was after I was ordained.
Q Do you remember when the school was there?
A Um, well, the school was built in the '20s, I believe.
Q Okay.
THE COURT: Any objection to the exhibit?
MR. ANDERSON: I can't tell if -- is it, can I ask foundation?
MS. McGUIRE: You want to look at it?
THE COURT: Yeah, why don't you go ahead and ask the question with reference to the exhibit, Mr. Anderson.
MR. ANDERSON: The exhibit that was placed before you, do you know if this looks the same in this picture as it did before 1977 or not?
THE WITNESS: In -- the church -- the church was there when I was ordained. In '77, the old church was still there. And I don't recall when they put that parking lot in on the school yard. When I was a student going to school there, it was all grass.
MR. ANDERSON: I don't have any objection to any of the exhibits if they depict it before '77.
THE COURT: We're just dealing with this exhibit. Is there an objection to this exhibit?
MR. ANDERSON: No.
MR. DE MARCO: Foundation and relevance, Your Honor.
THE COURT: Sustained.
MS. McGUIRE: Q All right. Let's do this: Father Craig, do you recognize this diagram as the location of where the new church was in 1963?
A Correct.
Q Okay. And do you recognize the location of the Santillan home?
A Yes.
Q Okay. Was -- where was the old church?
A It would be above the school yard there.
Q Up here?
A Up above, yes, correct.
Q Okay. All right.
A On that other street.
Q Okay.
A Facing the other street.
Q And was the old rectory across?
A It was across the street in front of the church --
Q Okay.
A -- on the other side of the block.
Q So the old rectory wasn't across from the Santillan home?
A No, no.
MS. McGUIRE: No further questions at this time, Your Honor.
THE COURT: Mr. Anderson, cross-examination?
MR. ANDERSON: Please.
**********
Q Do you remember the time when Monsignor Herdegen went to Milwaukee and took George with him?
A I don't remember when that was. I remember that George went on vacation with him one time.
Q And it was no secret made among you and the other folks about the fact that George went with Monsignor to Wisconsin, was there?
MS. McGUIRE: Objection. Speculation.
THE COURT: Sustained.
MR. ANDERSON: Q Well, you knew it, didn't you?
A I recall knowing it, yes. I don't remember when it was, but --
**********************
CROSS-EXAMINATION BY MR. ANDERSON:
Q Good morning, Father Craig.
A Good morning.
Q If I heard you correctly, you indicated that you were in minor seminary at Josephinum and then following seminary, at Ryan; correct?
A No, that's not correct.
Q How –
A I was in the minor seminary at Ryan sophomore through my senior year of high school; Josephinum, I attended for college, undergraduate, from '69 to '73.
Q Okay. And minor seminary at Ryan, how old would you have been when attending minor seminary?
A Let's see. I entered at 14 years old.
Q And then how old would you have been when attending the Josephinum?
A I entered at 17, turned 18 that September.
Q And both of those were training required of you as a part of your formation in order to become qualified as a priest to be ordained in the Diocese of Fresno --
A Right.
Q -- correct?
A They were both seminaries, correct.
Q Okay. And you did become ordained and made the promises that a priest makes at ordination?
A Correct.
Q And at diaconate; correct?
A Correct, yes.
Q And how old were you when ordained a deacon?
A When I was a deacon, I was 25; and priesthood, 25. I think that's correct.
Q The next year, essentially?
A Correct, yeah.
Q And remain so?
A Correct.
Q And if I heard you correctly, you knew George and you knew Howard?
A Yes. We grew up together.
Q And if I heard you correctly, you went to the Sunday breakfast that Monsignor Herdegen would host?
A No. I never had breakfast on a Sunday. It was either a weekday or Saturday.
Q Oh, weekdays and Saturdays?
A Yeah.
Q Okay. How many times did you have breakfast there?
A I'd say frequently. I don't remember the number of times, but frequently.
Q And you were how old then?
A Oh, gosh, junior high until the time I was ordained.
Q He had a lot of kids there with you, didn't he?
A No. I was -- I only ate there by myself. There might have been one or two times someone else was there, but I was usually always there by myself.
Q Oh, by yourself. And you'd be served by Barbara Zeilman?
A Correct.
Q She was the cook, the housekeeper?
A Correct.
Q And, really, the only other employee there besides Monsignor Herdegen at that time?
A Correct.
Q And then when Monsignor Herdegen would take a vacation, he would have another priest fill in for him --
A Correct.
Q -- correct?
A Yes.
Q Do you remember the time when Monsignor Herdegen went to Milwaukee and took George with him?
A I don't remember when that was. I remember that George went on vacation with him one time.
Q And it was no secret made among you and the other folks about the fact that George went with Monsignor to Wisconsin, was there?
MS. McGUIRE: Objection. Speculation.
THE COURT: Sustained.
MR. ANDERSON: Q Well, you knew it, didn't you?
A I recall knowing it, yes. I don't remember when it was, but --
***********
Q Sometime after that, if I heard you correctly, you did at one time take a trip with Howard to some kind of jubilee; correct?
A I don't recall any jubilee that I took him to.
Q Do you ever remember at any time driving with Howard to a church function?
A No, I do not.
Q No memory of that at all?
A None at all.
************************
Q And they were gone together for, like, a month weren't they?
A I don't know if George stayed there the whole tim or not. I don't know.
Q And George was, let's say, two years older than you?
A Correct.
Q And how old were you then?
A Um, I don't remember what year it was, so I can't answer that.
Q Sometime after that, if I heard you correctly, you did at one time take a trip with Howard to some kind of jubilee; correct?
A I don't recall any jubilee that I took him to.
Q Do you ever remember at any time driving with Howard to a church function?
A No, I do not.
Q No memory of that at all?
A None at all.
Q Father Craig, at any time while you were a seminarian, or in your formation, either at Ryan or in the Josephinum, knowing what you had seen and observed pertaining to Herdegen and some of the other kids, is it your testimony you never had any suspicions at all --
A I had --
Q Just a moment. Let me finish the question.
A Sorry.
Q Is it your testimony you never had any suspicions at all that Herdegen may have been inappropriate with youth?
A None whatsoever.
Q None?
A None.
**********
Q Is it your testimony you never had any suspicions at all that Herdegen may have been inappropriate with youth?
A None whatsoever.
Q None?
A None.
Q And you have no recollection of ever having asked Howard anything like, Did Herdegen ever do anything; is that --
A That's correct, I never asked him that….
Q All right. In any case, I'll represent to you that this was read. Bishop Steinbock has told us about it, and he actually read it to the jury here.
A Okay.
Q And the date of that is April 6th, 2002.
A Okay.
Q And it talks about praying for the Bishops and praying for the priests, and if anybody has been sexually abused --
A Okay. Correct….
Q Now, do you have memory of this having been read in parishes?
A Yes.
Q At the time it was read, did you have any belief that it had anything to do with information that had surfaced in the Diocese pertaining to Herdegen?
A No.
********************
Q And you have no recollection of ever having asked Howard anything like, Did Herdegen ever do anything; is that --
A That's correct, I never asked him that.
Q Never asked. When in time, Father, did you first learn that Herdegen had been accused or that complaint had been made by anybody that Herdegen had sexually abused them?
A In the summer of 2003, at Roque Borjon's reception, I had a long conversation with Howard at the counter, at the bar kind of a thing there. And he told me at that time that accusations were being made and that they had --
Q Okay. I just asked when. So you say it was the summer of 2003?
A Correct.
Q Okay. I'm going to show you an exhibit that's already in evidence, Father.
A Okay.
Q And I'll just walk you through it quickly. This is a memo that was sent by Bishop Steinbock to all the pastors?
A Uh-huh.
Q And you'll see it's dated March 28th, 2002. As a pastor and a priest of the Diocese, you would have gotten this one; right?
A Probably.
Q Okay. And you'll see that -- that pastors and deacons are to read this in the parish. And I'll also represent to you that we've already heard that this exhibit, 529, was read by pastors and priests in the various parishes of the Diocese of Fresno in early April of 2002. Do you see that?
A Yes.
Q And do you remember, were you a pastor in 2002?
A In 2002, I'd gone back to Guesthouse in Minnesota. And when did I get out of there? Uh, probably in February or March.
Q All right. In any case, I'll represent to you that this was read. Bishop Steinbock has told us about it, and he actually read it to the jury here.
A Okay.
Q And the date of that is April 6th, 2002.
A Okay.
Q And it talks about praying for the Bishops and praying for the priests, and if anybody has been sexually abused --
A Okay. Correct.
Q -- you know, come forward, report to the police, all that kind of stuff.
A Right.
Q Now, do you have memory of this having been read in parishes?
A Yes.
Q At the time it was read, did you have any belief that it had anything to do with information that had surfaced in the Diocese pertaining to Herdegen?
A No.
Q None at all?
A None at all.
Q Because there's no mention about Herdegen in there, is there?
A No.
Q No. Do you know why the Bishop made the decision to have this read?
MS. McGUIRE: Objection. Speculation.
THE WITNESS: Yeah.
THE COURT: Well, the objection's overruled. But, Father Craig, it's a yes-or-no answer.
THE WITNESS: No.
**********
Q All right. In any case, I'll represent to you that this was read. Bishop Steinbock has told us about it, and he actually read it to the jury here.
A Okay.
Q And the date of that is April 6th, 2002.
A Okay.
Q And it talks about praying for the Bishops and praying for the priests, and if anybody has been sexually abused --
A Okay. Correct….
Q Now, do you have memory of this having been read in parishes?
A Yes.
Q At the time it was read, did you have any belief that it had anything to do with information that had surfaced in the Diocese pertaining to Herdegen?
11 A No….
Q Because there's no mention about Herdegen in there, is there?
A No.
*********************
MR. ANDERSON: Q Okay. In 2002, did you come to the defense of Father Herdegen pertaining to some matters that had surfaced?
A No.
Q I'm going to show you what we've marked for identification Exhibit 259, and --
A That's my signature, correct.
Q Okay. And on Exhibit 259, that is your signature?
A Yes.
Q And do you remember signing this?
A Yes.
MR. ANDERSON: Okay. I'm going to offer 259.
MS. McGUIRE: I'm going to object as to relevance. 352.
THE COURT: Can I see it, please? Father Craig, can I --
MR. ANDERSON: I'm going to --
THE COURT: Oh, thanks. The relevance objection's overruled. 259 will be received.
(Thereupon Plaintiffs' Exhibit No. 259, a letter, was received in evidence.)
MR. ANDERSON: Q Father Craig, in addition to your signature on this exhibit, there is a signature of many other people?
A Correct.
Q Some of whom you know; some of them you don't?
A I know all of them, I believe.
Q Okay. And they're all active Catholics and involved with the Sierra Club?
A The Serra Club.
Q The Serra Club, pardon me. And this is addressed to Monsignor Herdegen, is it not?
A Yes, it is.
Q And what's the date on it?
A May 7th, 2002.
Q And would you just read for the ladies and gentlemen of the jury what you -- what you signed on to here.
A "Dear Father Anthony Herdegen" --
Q Excuse me, Father.
THE COURT: Remember, the court reporter has to take this all down.
THE WITNESS: Okay, sorry.
THE COURT: So you need to slow down a little bit.
THE WITNESS: All right.
MR. ANDERSON: Q And, Father, we all have a tendency to read faster than we speak.
A Okay.
Q So --
A Sure.
Q -- we have to work on this.
A Okay. All right. Thank you. "Dear Father Anthony Herdegen: We, the members of the Serra Club of Fresno, extend to you our heartfelt thank you for your steadfast devotion and loyalty to our faith. We thank you, support you, and love you for all that you do in ministering to us. We will continue to pray for you each and every day, and we are therefore now --we are there for you now more than ever. We boldly defend you. We are grateful for the many services that you perform, and from the depths of our hearts, we give Thanks to Almighty God for your ministry. We know that your God-given faith will deliver you through this current crisis with humility, faith, and fortitude. The current crisis has given all of us an opportunity to refocus our lives on Christ, and a deeper spirituality will arise from the ashes of the scandal. God bless you and may the Lord Jesus Christ continue to guide you and protect you. With all our love and respect, The Serra Club of Fresno."
Q Father Craig, why are you writing in 2002, if you didn't know that any issues had surfaced regarding Herdegen, number one, that you would boldly defend him?
A Uh --
Q Defend him against what, sir?
A Um, I had heard that the Santillans had written a letter to the Bishop making accusations, but I did not have any discussion with any of them at that time.
Q And this letter was written by you and signed by these others to come to Herdegen's defense responsive to the -- having heard that the Santillans had made allegations; right?
A Correct. But I didn't write that letter. I signed it. It was written by the secretary of the Serra Club, I believe.
Q And it also refers to the current crisis, that is, the current crisis that -- when you say "current crisis," did you believe that Monsignor Herdegen was being falsely accused by the Santillans?
A That's correct.
Q You believe that to this day, don't you?
A Yes.
MR. ANDERSON: Nothing further.
THE COURT: Mr. De Marco?
MR. DE MARCO: Thank you, Your Honor. Your Honor, I seek to read from portions of the December 5th, 2005 deposition transcript. I'd seek to read --
THE COURT: Page and line?
MR. DE MARCO: Beginning with page 40, line 18, through page 41, line 13.
THE COURT: All right. Just one moment.
MS. McGUIRE: I'm sorry, 40, line what?
MR. DE MARCO: 18, through 41, line 13.
THE COURT: Any objection?
MS. McGUIRE: No objection.
THE COURT: Go right ahead.
MR. DE MARCO: "Question" -- and again, this was from December 5th, 2005. "Question: When is the first time that such information came directly from counsel that you heard of any allegations being made about Monsignor Herdegen molesting a child? Answer: I think it was through some friends in Wasco saying that the Santillans had made an accusation. Question: Do you remember which friends? Answer: It was a lady named Earlene Borjon. Question: Arlene? Earlene, E-A-R-L-E-N-E. Borjon, B-O-R-J-O-N. Question: B-O-R -- Answer: B-O-R-G-O-N, Borjon.”
THE COURT: That's B-O-R-J-O-N.
MR. DE MARCO: Thank you, Counsel -- or thank you, Your Honor "Question:” I apologize. "And you -- anyone else inform you from there? Answer: Not that I can recall. And what did Ms. Borjon tell you? Answer: Just that -- that the Santillans had made some accusations, sent a letter to the Bishop. Question: Do you have any recollections as to when that was? Answer: I'm going to say it was maybe ten years ago, ballpark figure." Your Honor, I'd ask to read another portion of the deposition starting at page -- again, 41, line 14, through page 42, line 6.
MS. McGUIRE: No objection.
THE COURT: Go right ahead.
MR. DE MARCO: (Reading.) "Question: Had you ever had any suspicion up until that point that Monsignor Herdegen had engaged in anything inappropriate with a minor? Answer: I grew up in that town, and Monsignor came when I was in the second grade. And the Santillans lived catty-corner from the church, and they were very good friends of my family. And George is two years older than I am. Howard, two years younger, but in my brother's class. He got held back one year. And they were at the house over there all the time. And Monsignor was over their house a lot. And when I was ordained in 1977 and Howard and I were going one time to Fresno together; and I remember, you know, like trying to talk and say, God -- 'Gosh, did anything go on?' or 'What was the deal?' And he never said anything or anything. And that -- I had, like, a kind of a gut-level feeling, but I had no evidence of anything whatsoever."
MR. DE MARCO: Your Honor, I have nothing further.
THE COURT: Redirect?
MS. McGUIRE: Thank you, Your Honor.
REDIRECT EXAMINATION BY MS. McGUIRE:
Q Father Craig, do you recall having a conversation with Howard about what was just referenced in the deposition?
A No, I do not.
Q Okay. And prior to -- well, let me ask you this: In May of 2002, had you heard that some accusations had been made?
A Um, I don't recall exactly the date when -- when I heard.
Q You had never talked to Howard about this until Roque Borjon's funeral, though; is that correct?
A Correct.
Q Now, the Serra Club, that's not connected with the Diocese?
A The Serra Club is an independent organization, Catholic organization, to promote vocations.
Q When you heard the accusations in 2002, was it hard for you to believe those accusations?
A Very hard.
MR. ANDERSON: Objection. Relevancy -- I'll withdraw it. Never mind.
THE COURT: All right.
THE WITNESS: Very hard to believe.
MS. McGUIRE: Q Did you ever have any indication during all the times that you were at the church or at the rectory that Monsignor Herdegen was inappropriate in any way?
A Never thought of that.
Q And you'd never heard from any source prior to the information that came out in 2002 that Monsignor Herdegen had been inappropriate sexually with anyone?
A Never heard anything.
Q Is it still very hard for you to believe that to this day?
A Yes, it is.
MS. McGUIRE: Thank you. No further questions.
THE COURT: Recross?
MR. ANDERSON: No.
THE COURT: Recross?
**********
Q Do you recall ever telling Monsignor Frost that -- do you recall telling Monsignor Frost that Monsignor Herdegen had given you inappropriate -- or overly long embraces?
A He --
MS. McGUIRE: Objection. Relevance. Hearsay.
THE COURT: Overruled.
THE WITNESS: Um, sometimes Monsignor Herdegen would give us long hugs after serving Mass.
Q Isn't it true that you told Monsignor Frost that immediately after coming up in conversation that the Santillans had alleged they were abused?
A Uh, probably. I would never have had any other reason to talk to him about it.
*********************
(RECROSS-EXAMINATION BY MR. DE MARCO:)
Q Father Craig, when you first learned of -- when you learned of the abuse allegations, you were with Father Frost, weren't you -- or Monsignor Frost?
A I don't -- no, I don't believe I was. I didn't hang out with him much.
Q Do you recall ever telling Monsignor Frost that -- do you recall telling Monsignor Frost that Monsignor Herdegen had given you inappropriate -- or overly long embraces?
A He --
MS. McGUIRE: Objection. Relevance. Hearsay.
THE COURT: Overruled.
THE WITNESS: Um, sometimes Monsignor Herdegen would give us long hugs after serving Mass.
MR. DE MARCO: Q When do you recall telling Father Frost that?
A Um, sometime while he was in Oildale. I'm not sure what time he went there.
Q Isn't it true that you told Monsignor Frost that immediately after coming up in conversation that the Santillans had alleged they were abused?
A Uh, probably. I would never have had any other reason to talk to him about it.
MR. DE MARCO: No further questions.
THE COURT: Anything else?
MS. McGUIRE: Just a short question.
FURTHER REDIRECT EXAMINATION BY MS. McGUIRE:
Q When Monsignor Herdegen would hug you, did you feel that it was inappropriate contact?
A Not inappropriate. It was longer than I felt comfortable, but there was nothing inappropriate about it whatsoever.
Q Was your family the type of family that didn't show physical affection?
A Very German family.
Q Okay. So they didn't hug very much?
A No.
**************
[FATHER CRAIG (READING):] Okay. All right. Thank you. "Dear Father Anthony Herdegen: We, the members of the Serra Club of Fresno, extend to you our heartfelt thank you for your steadfast devotion and loyalty to our faith. We thank you, support you, and love you for all that you do in ministering to us. We will continue to pray for you each and every day, and we are therefore now --we are there for you now more than ever. We boldly defend you. We are grateful for the many services that you perform, and from the depths of our hearts, we give Thanks to Almighty God for your ministry. We know that your God-given faith will deliver you through this current crisis with humility, faith, and fortitude. The current crisis has given all of us an opportunity to refocus our lives on Christ, and a deeper spirituality will arise from the ashes of the scandal. God bless you and may the Lord Jesus Christ continue to guide you and protect you. With all our love and respect, The Serra Club of Fresno."
Q Father Craig, why are you writing in 2002, if you didn't know that any issues had surfaced regarding Herdegen, number one, that you would boldly defend him?
A Uh – …
Q And it also refers to the current crisis, that is, the current crisis that -- when you say "current crisis," did you believe that Monsignor Herdegen was being falsely accused by the Santillans?
A That's correct.
Q You believe that to this day, don't you?
A Yes.
********************
Q Was there anything -- did you interpret the hugs that Monsignor gave you to be sexual in nature at all?
A Absolutely not.
MS. McGUIRE: Thank you.
THE COURT: Any other questions?
MR. ANDERSON: Nothing further.
THE COURT: Mr. De Marco?
MR. DE MARCO: Nothing further. Thank you.
THE COURT: May this witness be excused?
MS. McGUIRE: Yes, Your Honor.
MR. DE MARCO: Yes, Your Honor.
THE COURT: Thank you, Father Craig. You're excused.
THE WITNESS: Thank you.
THE COURT: Thank you for coming. And are the plaintiffs ready with their next witness?
MR. DE MARCO: Your Honor, the next piece of evidence that we would seek to utilize would be the videotaped deposition; and after that, I think we'd inform the Court --
THE COURT: Okay. Why don't you go ahead -- are you ready to go with that?
MR. ANDERSON: I think it's a five-minute setup. Can we take a break now?
THE COURT: We'll take about a ten-minute break, ladies and gentlemen. Take a break until 10:20. Do remember the admonitions during the break, and we'll see you all at 10:20.
MR. WEAKLEY: Excuse me, Your Honor. Can we approach briefly?
THE COURT: We'll do it on the record as soon as the jury leaves.
MR. WEAKLEY: Just to remind you, we would like to see the video. That's what the problem was.
THE COURT: Oh, okay.
(Thereupon the jury retired from the courtroom and the following proceedings were held:)
THE COURT: For the record, the jurors have left. You wanted to see the video?
MR. WEAKLEY: Yeah, I'm sorry, I thought maybe you'd want to give the jury a little longer break, since it's going to take a few minutes to see the video.
THE COURT: Why don't you just read the transcript?
MR. WEAKLEY: I don't have it.
MS. McGUIRE: Because it's not outlined.
MR. DE MARCO: Your Honor, I gave a designation. It was the same portions that we designated that were part of the order previously, but I'll pull the designations.
THE COURT: Either show it to them now or show them where the transcript is.
MR. WEAKLEY: I thought they had to set up first. Apparently, they can see it here.
MR. ANDERSON: We'll show it to them. We'll go off the record.
THE COURT: All right.
(Thereupon a recess was taken.)
THE COURT: Does that complete it now?
MR. DE MARCO: Yes, Your Honor.
THE COURT: All right. We'll be on the record, then. Counsel are present. You've had a chance to look at the video?
MS. McGUIRE: Yes, Your Honor. We have the same general objections that were asserted earlier that the Court has already gone through. But particularly, with regard to the two sections of this video that talk about -- they were asking him questions about what some of the seminarians went on to do, and it's all speculation. He doesn't know. He thinks -- you know, those questions, I think, should be --
THE COURT: Were those objections raised during the deposition?
MS. McGUIRE: During the deposition?
THE COURT: Yeah.
MS. McGUIRE: I didn't take the deposition. I don't know.
THE COURT: I suspect Mr. Johnson was at the deposition, but don't you have to raise those objections in the depositionto preserve them, speculation objections?
MS. McGUIRE: Well, I think we raised them in the motions in limine when we objected to the testimony coming in. We had raised it as speculation and 352 and various other issues.
THE COURT: I think you have to raise those. As we all know, there are certain objections that have to be raised in the deposition to be preserved, and I think speculation is one of them because that's something that can be cured through another question.
MR. WEAKLEY: I'm not sure if it's the question or the answer that causes it to be speculative, Your Honor. I don't have the deposition transcript with me, because I didn't know they were going to play this today. By the nature of his answers, you can tell that he was speculating.
THE COURT: But then aren't you required to make a motion to strike?
MR. WEAKLEY: I think the rule is that you're supposed to make an objection to the form of the question. I know oftentimes in depositions people make motions to strike, but I don't know if there's a rule that says that as opposed to just a practice that some lawyers have.
THE COURT: That's always been my understanding. I can't pull up any specific authority for it, but the theory is that if -- if the lawyer asking the questions is alerted to the problem, he can change the question and perhaps deal with it.
MR. WEAKLEY: Right. That's why the objection shouldn't be the form of the question. I don't know the authority -- maybe there is. I don't know -- the authority that says you have to make a motion to strike the answer.
THE COURT: That's my thinking. So the objection is speculation, and there was no objection or motion to strike in the deposition. It will be overruled. Are there any other objections?
MR. WEAKLEY: Two areas where that would be raised, Your Honor. One is where he's speculating about whether or not the rector had seen these massages, and the other is he's speculating about whether or not priests came to the Fresno or the Monterey-Fresno Dioceses. Those were two areas in the deposition that were objected to on speculation.
THE COURT: Were the objections raised during the deposition?
MR. WEAKLEY: Apparently not from the video. I don't know if they were in the transcript or not.
MS. McGUIRE: It's not on the video that any objection --
THE COURT: Was it in the transcript?
MR. WEAKLEY: I don't know. Mine's out in my car.
THE COURT: Well, I don't know what we can do. Is there anything else we can do before we play this? This all should have been done before today.
MS. McGUIRE: If they would have given it to us, we could have dealt with this and -- yesterday.
THE COURT: It should have been done before, not immediately before we want to play it to the jury.
MR. DE MARCO: Your Honor --
MR. WEAKLEY: I thought there's a local rule that says that.
MR. DE MARCO: In fact, we had exchanged more than a month ago the transcript and designated these specific portions.
*************
THE COURT: I'll let jurors know that, once again, we're interrupting the plaintiffs' case and putting on some defense witnesses.
*****************************
THE COURT: Okay. But this -- what we're doing now should have been done so that we don't have to waste time when the jury's sitting in the jury room. Is there anything else the plaintiffs have to offer in terms of evidence, or is that it, except for the witness who's coming on Monday?
MR. DE MARCO: That's it.
THE COURT: Is there anything else?
MR. ANDERSON: That's -- nothing else, Your Honor. And the transcript of the portion -- the substantive evidence that was intended to be offered was supplied them, and no objection had been raised at that time.
MS. McGUIRE: Well, that's not true. I raised objections to all of these issues. I've got them right here, all of my objections.
THE COURT: Are there defense witnesses ready to go?
MS. McGUIRE: Let me check.
MR. WEAKLEY: I'll check, Your Honor. Again, we've been sitting here watching this.
THE COURT: Sure.
MR. WEAKLEY: And just for the record, as a side note, I'd like to point out this video was represented to take five minutes, actually took 15 to 20 minutes, which is consistent with virtually all the plaintiffs' time estimates throughout this trial.
THE COURT: Well, yeah, let's see if we have a witness ready to go.
MS. McGUIRE: I'll see if they're here. Our witnesses are ready.
THE COURT: Okay. We're going to put a defense witness on the stand, then, so that everybody has more time to look at this video. Maybe we can do it right after lunch if you can spend some time during the lunch hour looking at it.
MR. DE MARCO: Thank you, Your Honor.
THE COURT: I'll let jurors know that, once again, we're interrupting the plaintiffs' case and putting on some defense witnesses. Is Mr. Weakley coming in?
MS. McGUIRE: He is as soon as he goes to the restroom.
THE COURT: Oh.
MS. McGUIRE: And, Your Honor, probably other than this, these witnesses this morning -- we do want to read some of the testimony of Monsignor Herdegen into the record -- and with the exception of the seminary witnesses, that will probably be it for us.
THE COURT: Oh, okay. So you -- so you'll be done today, then?
MS. McGUIRE: I believe so, except for handling the seminary witnesses.
THE COURT: Who are the seminary witnesses?
MS. McGUIRE: Well, they've got --
MR. WATERS: McDaniel.
THE COURT: These are the plaintiffs' witnesses?
MS. McGUIRE: Right.
THE COURT: I see.
MS. McGUIRE: And then we may have some rebuttal witnesses on that issue.
THE COURT: And they're -- the seminary witnesses are coming in on Monday?
MR. DE MARCO: Just one.
THE COURT: Just one seminary witness?
MR. DE MARCO: Yes, Your Honor.
THE COURT: Okay. All right. And then you'll have your rebuttal all lined up and ready to go on Monday; right?
MS. McGUIRE: That's my plan.
THE COURT: Let's hope. Let me just mention, while we're in kind of a lull here, the clerk informs me that the parties have substituted -- have requested to substitute original exhibits from the priest file of Monsignor Herdegen for what we had previously marked as Exhibits 167 and 168; is that correct?
MR. ANDERSON: That is correct.
THE COURT: Is that agreed?
MS. McGUIRE: I'm sorry, Your Honor. I didn't hear the first part.
THE COURT: I said the clerk has informed me that the parties have agreed to substitute original records -- or, I should say, records from the priest file of Monsignor Herdegen for what we have previously marked as Exhibits 167 and 168. In other words --
MS. McGUIRE: Oh, substitute the original?
THE COURT: Yes, right.
MS. McGUIRE: Okay. Sure. Yeah, if they're already in evidence, then --
THE COURT: Well, they were both in evidence. It's just a matter of substituting what appear to be originals for the copies.
MS. McGUIRE: Okay.
THE COURT: So that would be the order. And let's bring in the jury.
MS. McGUIRE: Okay.
(Thereupon the jury returned to the courtroom, and the following proceedings were had:)
THE COURT: All right. Welcome back, ladies and gentlemen. Please be seated, everyone. We apologize for the brief delay, ladies and gentlemen. We're going to, once again, interrupt the plaintiffs' case to call a witness in the defense case. And this witness is?
MS. McGUIRE: Mary Morley, Your Honor.
THE COURT: Would you raise your right hand, Mrs. Morley, and face the clerk, please.
MARY MORLEY, called as a witness by and on behalf of the Defendants, having been first duly sworn, testified as follows:
THE COURT: Would you have a seat up here, please. Good morning.
THE WITNESS: Good morning.
THE COURT: Would you state your full name and spell your last name, please.
THE WITNESS: Mary Morley, M-O-R-L-E-Y.
THE COURT: Go right ahead, Ms. McGuire.
MS. McGUIRE: Thank you.
DIRECT EXAMINATION BY MS. McGUIRE:
Q Good morning, Mrs. Morley.
A Good morning.
Q Are you a little nervous?
A Yes.
Q Is this the first time you've ever testified in a courtroom?
A Yes.
Q Okay. Mrs. Morley, where do you live right now?
A I live in Bakersfield, California.
Q And at some point in time, did you live in Wasco?
A Yes, I did. I was born there.
Q Okay. And what is your relationship to Barbara Zeilman?
A She's my mother.
Q Okay. What was her date of birth?
A June the 11th, 1892.
Q Okay. And was there a period of time when you lived with your mother?
A Yes.
Q Was that in Wasco?
A Yes.
Q And what period of time did you actually live with your mother?
A Okay. I lived with her from the time I was born until I got married in '61, and then I was gone till '64. And I came back and lived with her again after my husband died.
Q And when you came back to Wasco in 1964, did you have children?
A Yes, I had two.
Q And what were the names and ages of your children?
A Sharon was almost three, and Philip was eight weeks old.
Q During the time that you were in Wasco, did you belong to St. John's Parish?
A Yes, I did.
Q And did your mother also belong to St. John's Parish?
A Yes.
Q Okay. And was she a pretty devout Catholic?
A Yes, she was.
Q Did she go to Mass every day?
A Yes.
Q Did she say the rosary every day? Did she say the rosary a lot?
A Yes, every -- every morning before Mass.
Q Okay. Do you remember Monsignor Herdegen?
A Yes, I do.
Q Did your mother work for him?
A Yes.
Q Did she start working for him after the new church was built?
A Yes.
Q Okay. Was that around 1963?
A Uh-huh.
Q Now, you were out of town, but did you communicate with your mother often?
A Yes.
Q And did she tell you that she was going to be working at the new church?
A Uh-huh.
Q Okay. So during the time that she was working at St. John's Parish from 1964 on, you and your two children lived with her in Wasco; is that correct?
A Yes, yes.
Q What were her hours of work?
A She went -- she went early, I think about 6:30, because she went to Mass; and then after Mass, she went to work. And then she worked till 1:30, and then no later than 2:00.
Q Okay. What were her days off?
A Tuesdays.
Q Did she have Sundays off, too?
A Sunday, yeah.
Q So would it be Tuesday and Sunday?
A Tuesday and Sunday.
Q Did Monsignor have a day off?
A Thursdays.
Q Okay. And on Thursdays, when Monsignor had the day off, did you ever come to the rectory?
A Did I?
Q Yes.
A Yes.
Q Why did you come on Thursdays?
A I helped my mother clean.
Q Okay. What did you clean on Thursdays?
A I cleaned his room and his sitting room, and then we just worked our way up to the front --
Q Okay.
A -- because she couldn't do the heavy work.
Q So you would help her with the heavy work?
A Uh-huh.
Q Did that include stripping the bed and changing the sheets on the bed?
A Yes.
Q Okay. When you changed the sheets on the bed, did you ever notice any stains on the sheets?
A No.
Q Other than the sheets that were on the bed, did you ever help your mother and wash other sheets that were anywhere in the house?
A No.
Q Now, did Monsignor Herdegen in the rectory have a study --
A In his --
Q -- in the rectory?
A Where his bedroom was.
Q I'm going to show you an exhibit, Mrs. Morley, that's been marked as Defendants' 526-A. Stand up over here. Might be easier. You can see it. Do you recognize this as the layout of the rectory? This is the entrance here.
A Yes.
Q And the living/dining room?
A Uh-huh.
Q And was your mother primarily in the kitchen there?
A Yes.
Q Okay. And was this Monsignor Herdegen's living room and study?
A Yes.
Q Okay. And then his bedroom was off of that?
A Yes.
Q Okay. And now, were you ever at the rectory when Monsignor Herdegen was there?
A Yes, he would be back in the back.
Q Okay. Did you ever -- did your mother ever go back to the back part of the rectory where his living quarters were when he was there?
A No.
Q Would you -- you were at the rectory at least once a week on Thursdays; is that right?
A Yeah.
Q Did you go sometimes, other times, just to visit your mom?
A Just to pick -- yeah, if the kids wanted to go down, see their grandma, I took them down there.
Q Okay.
A But we wouldn't go no further than the kitchen.
Q Okay. Did you ever see George Santillan at the rectory?
A No, I didn't.
Q Did you ever see Howard Santillan at the rectory?
A No, I never did.
Q Did your mother ever tell you that they were there?
A No.
**********
Q Okay. Was there ever an occasion when your son Philip traveled to Hilmar and spent a few days at the rectory with Monsignor?
A Yes.
Q How did that happen?
A Well, my mother called to see how Monsignor was doing, and he said that he didn't have any altar boys for Easter. And so we just -- we waited till we hung up, then I talked to Philip and my mom afterwards. And asked her -- I said, "Philip, would you like to go help Monsignor? He doesn't have any altar boys." And he said, "Yes." And my mother agreed, you know….
Q Okay. Was your mother pretty close with -- with her grandson Philip?
A Yes, she's also his godmother.
Q Okay. And she would never do anything to put him in harm's way, would she?
A No, no.
MS. McGUIRE: Thank you. No more questions….
CROSS-EXAMINATION BY MR. ANDERSON:
Q Ms. Morley, when you permitted your son Philip to stay at the rectory with Monsignor Herdegen, was that to stay overnight?
A Yes, for the weekend, Friday night and Saturday night.
Q When you permitted that to happen, before that time had anybody ever told you that Monsignor Herdegen was a danger to children?
A No.
Q To this day has anybody from the Diocese -- any Bishops, chancellors, or other priests -- ever told you that Monsignor Herdegen has a history of abusing children?
MS. McGUIRE: Objection. Relevance.
THE WITNESS: No.
********************
MS. McGUIRE: Q Was your son Philip an altar boy?
A Yes.
Q Okay. After Monsignor moved from St. John's in Wasco, do you know where he went?
A He went to Hilmar.
Q Okay. Was there ever an occasion when your son Philip traveled to Hilmar and spent a few days at the rectory with Monsignor?
A Yes.
Q How did that happen?
A Well, my mother called to see how Monsignor was doing, and he said that he didn't have any altar boys for Easter. And so we just -- we waited till we hung up, then I talked to Philip and my mom afterwards. And asked her -- I said, "Philip, would you like to go help Monsignor? He doesn't have any altar boys." And he said, "Yes." And my mother agreed, you know.
Q Okay.
A And so I sent him up on the train on a Friday, and he came back Sunday on the train.
Q Okay. And did he stay at the rectory with --
A Yes.
Q -- Monsignor?
A Yes.
Q Okay. Was your mother pretty close with -- with her grandson Philip?
A Yes, she's also his godmother.
Q Okay. And she would never do anything to put him in harm's way, would she?
A No, no.
MS. McGUIRE: Thank you. No more questions.
THE COURT: Cross-examination?
CROSS-EXAMINATION BY MR. ANDERSON:
Q Ms. Morley, when you permitted your son Philip to stay at the rectory with Monsignor Herdegen, was that to stay overnight?
A Yes, for the weekend, Friday night and Saturday night.
Q When you permitted that to happen, before that time had anybody ever told you that Monsignor Herdegen was a danger to children?
A No.
Q To this day has anybody from the Diocese -- any Bishops, chancellors, or other priests -- ever told you that Monsignor Herdegen has a history of abusing children?
MS. McGUIRE: Objection. Relevance.
THE WITNESS: No.
MS. McGUIRE: Speculation.
THE COURT: Overruled.
MR. ANDERSON: Nothing further.
THE COURT: Mr. De Marco?
MR. DE MARCO: No questions, Your Honor.
THE COURT: Any further questions?
MS. McGUIRE: No questions.
THE COURT: May this witness be excused?
MS. McGUIRE: Yes.
THE COURT: Thanks very much, Mrs. Morley.
THE WITNESS: Oh, thank you.
THE COURT: You're excused. And thank you for coming.
THE WITNESS: Uh-huh.
THE COURT: And the defendant may call its next witness.
MS. McGUIRE: Your Honor, that's it. We're done --
THE COURT: Oh.
MS. McGUIRE: -- with the exception of the -- the testimony we want to read and rebuttal too Monday.
THE COURT: All right. The testimony you're going to read is from Monsignor Herdegen's deposition?
MS. McGUIRE: Yes, it is.
THE COURT: All right. Well, why don't we do this: Ladies and gentlemen, I realize you just took a break, but we're going to give you another break. I'm hoping we can get this done this morning so you folks will have the afternoon off. And then we'll have a few witnesses on maybe -- maybe two -- well, a few witnesses on Monday, and I suspect you'll have Monday afternoon off as well. And then we'll come back on Wednesday to do closing arguments. So that's the tentative plan right now, which is always subject to change, but that's the tentative plan. So remember the admonitions. We'll take about a 15-minute break now and see if we can finish up with this evidence this morning.
(Thereupon the jury retired from the courtroom and the following proceedings were held:)
THE COURT: All right. The jurors have left. I'm going to give you 15 minutes to resolve any issues related to the part of the deposition of Monsignor Herdegen that the plaintiffs want to play and any of the defense passages as well.
MS. McGUIRE: Okay.
THE COURT: All right. I'll come out in about ten minutes, and we'll resolve any objections that you can't take care of at that time.
MS. McGUIRE: Thank you, Your Honor.
THE COURT: All right.
MR. WEAKLEY: Your Honor?
THE COURT: Uh-huh.
MR. WEAKLEY: When you said whatever defense wants to play, I assume relating to this. We will -- what we'd like to do is be able to read some of his deposition transcript Monday on other areas as our -- part of our case in chief.
THE COURT: Why not do it now?
MR. WEAKLEY: Because I don't have it available. I thought we were going to be going into Monday.
(Thereupon a discussion was held off the record between counsel.)
MS. McGUIRE: Sorry, I'm ready.
THE COURT: I'd like to do as much as we can now --
MS. McGUIRE: Yeah.
THE COURT: -- because, the way I'm thinking, you folks can meet this afternoon about jury instructions, and then we can do our jury instruction conference on Monday afternoon; and we'll be all ready to go with argument on first thing Wednesday morning.
MS. McGUIRE: Sounds good.
THE COURT: Hopefully get the case to the jury on Wednesday.
MS. McGUIRE: Okay.
MR. DE MARCO: Thank you, Your Honor.
THE COURT: All right.
(Thereupon a recess was taken.)
THE COURT: All right. We'll be back on the record. Counsel, except Mr. Weakley, are present. Do we have any issues related to the depositions?
MS. McGUIRE: Your Honor, we're going to -- we've just gone through what we're going to read. Everything's fine there.
THE COURT: Okay.
MS. McGUIRE: We're going to put our objections on the record regarding speculation as to the parts we've discussed. There were no objections to the form of the question, speculation --
THE COURT: You checked the transcript on that?
MS. McGUIRE: -- in the transcript. I checked.
THE COURT: Okay. All right. And I think I've dealt with those objections, haven't I? Didn't I overrule those?
MR. ANDERSON: Yes.
MR. DE MARCO: I understood that, Your Honor.
MS. McGUIRE: Right, right, because they weren't made at the deposition.
THE COURT: Yes.
MS. McGUIRE: So I think we're good to go.
THE COURT: Okay.
MS. McGUIRE: Let me get Mr. Weakley.
THE COURT: Yes.
MR. WEAKLEY: I would like to make one further objection. Your Honor, I'd like to make one further objection.
THE COURT: All right.
MR. WEAKLEY: Again, to make the record on this massage issue as a whole, that when the appellate court looked at this case, the plaintiffs' counsel represented that the only issue relating to the 340.1 notice was the housekeeper's knowledge and not what happened back in 1957. So that's the issue that this case -- in fact, I believe that was even represented subsequent to the appellate court decision. All this new information about the massages is 352 and lack of relevance.
THE COURT: Okay. Those will be overruled. Let's -- all set?
THE BAILIFF: We have them now.
THE COURT: Let's bring them in. So we'll start with the plaintiffs' part and then do the defense part.
MR. DE MARCO: Thank you, Your Honor.
THE COURT: All right, ladies and gentlemen. Welcome back. Please have a seat, everyone. We'll be back on the record with counsel and the jurors present. We're now going back to the plaintiffs' case. And I understand the plaintiffs are going to play some additional passages from the deposition of Monsignor Herdegen; is that correct?
MR. DE MARCO: Yes, Your Honor. Plaintiffs seek to introduce additional portions of the deposition transcript of Monsignor Herdegen. He's unavailable, as he resides in Wisconsin. We offer these excerpts as substantive evidence.
THE COURT: Go right ahead and play it.
(Thereupon a videotaped deposition of Monsignor Herdegen was played, not reported.)
THE COURT: Does that conclude it? All right.
MR. WATERS: Just, for the record, Your Honor, it's been marked as Exhibit 411.
THE COURT: All right. Is it being moved into evidence?
MR. DE MARCO: Yes, Your Honor.
THE COURT: Any objection other than those previously stated?
MR. WEAKLEY: Cumulative.
THE COURT: The objection's overruled. It will be received.
(Thereupon Plaintiffs' Exhibit No. 411, a video excerpt, was received in evidence.)
THE COURT: Does the defense wish to read from portions of Monsignor Herdegen's deposition now?
MS. McGUIRE: Yes, Your Honor.
THE COURT: Go right ahead.
MS. McGUIRE: Yes, Your Honor. We'll be reading from the deposition of Monsignor Anthony Herdegen taken June 8th, 2006. First page 28, line 16 through 22. "Question: Okay. How long were you in Kerman for? Answer: Maybe six months, eight months. Now ask me why. Question: Why? "Tony, he had another job for me in Atascadero State Hospital to be chaplain there. He picked me to take that position for the state of California. Page 48, line 24, through page 51, line 25. Question: Okay. Now, when you got assigned to St. John's in Wasco, there was -- I guess when you got assigned there -- there initially, there was an older rectory building? Answer: Real old. Question: Okay. And within a few years, that building was replaced? Answer: Oh, yeah. We built a new church and rectory. "Question: Okay. Now, in the old rectory, when you -- when you got there, were there any priests assigned with you? "Answer: No. "Question: Okay. Was there room for any other priest there? "Answer: Hardly. Question: Okay. Did you have any -- any employees or anyone helping you work at the rectory when you got assigned? Again, this is initially and at the old rectory. Answer: No. Question: There was no parish secretary? Answer: No. Question: There was no one that helped with the housekeeping? Answer: No. Okay. How about cooking of meals? Answer: I did it. Question: You cooked all your own meals? Answer: (Nods head.) Question: About how long after your arrival in, say, Wasco, was it before --Answer: New place? Question: -- new rectory was built? Answer: '63. Question: Okay. So it would have been -- Answer: And I came in '59. Question: Okay. Now, in -- you do remember the Santillan family, I take it? Answer: Oh, yeah. Question: Okay. Do you recall when it was that you first got to know them or first really came in contact with them? Answer: Really, I would say, really after -- in about '63, when they moved to the new building there, then they were close there. Question: Okay. Answer: Otherwise, they didn't bother with me much, no. Question: Okay. Do you remember there being some kind of accident with one of the younger boys? Answer: I do remember that. That was in the old shack, the old rectory, at the time when it happened. Question: Okay. What do you remember happened? Answer: A car hit him. Question: Uh-huh. Answer: And I ran over to give some consolation to the family and do what I could for the boy. Question: Okay. And when you gave consolation to the family, did you offer any assistance or anything at all to them? Answer: Well, pray for them -- Question: Uh-huh. Answer: -- and console them. Question: did you offer to -- to help take care of any of the other boys? Answer: No, not necessarily, no. They were capable of doing that. "Question: You didn't offer to do any kind of day babysitting or any sort for the boys -- of any sort for the boys? Answer: No. Question: Okay. You remember George Santillan? Answer: Yes, I do. Question: Okay. And do you recall, I take it, meeting -- do you recall meeting him early on after the accident? Answer: No, I don't know when the accident occurred, really. It was when I was at the old house. Question: Uh-huh. Do you recall meeting George when you were still at the old house? Answer: No, just as a student with the rest of them. Question: Do you remember whether you ever had George come over and visit you at the old rectory? Answer: No, I don't have -- I don't think he did. I really don't think he did. Question: Okay. You think the first time you had him over the rectory was at the new rectory? Answer: Probably, yes. Question: So the earliest would have been around 1963? Answer: Or '64, yeah, '64, somewhere."
The next page and line reference is 57, lines 2 through 9.
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Question: Did you at any point in time give George a key to the rectory?
Answer (Monsignor Herdegen in deposition): Yes.
Question: How -- when about did you give him a key to the rectory? Answer: I don't know. Probably '63, '64.
Question: Did you tell anyone that you were giving him a key to the rectory?
Answer: No….
Question: Did he ever use that key, to your knowledge?
Answer: I presume.
Question: Why do you presume that?
Answer: Because I didn't have to open the door.
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Question: Was there anyone else who -- who worked with you at the rectory? Answer: I had a housekeeper. She came in during the day -- Question: Okay. Answer: -- and prepared a meal for me at breakfast and noontime. Question: Okay. Answer: And then she went home. She's dead.
Page 57, lines 23 through 25.
Question: Mrs. Zeilman, did she start working when the new rectory was built or before? When the rectory was built. Page 58, line 16 through 24. Question: Okay. What -- what, generally speaking, were her duties at the rectory while you were there? Answer: Well, she made breakfast and dinner -- lunch, rather. She did the washing and cleaning of the house and answering doorbells. Then she usually went after -- after lunch, she would go home. Question: Around when? When would that be typically? Answer: Probably 1:00 o'clock, 1:15."
And then the next reference is 58, line 25, through 59, line 11.
Question: So she'd get there about when each day? Answer: She went to Mass – she came before the Mass, went to her quarters, and she came to Mass. And then she came back again. So when would Mass be? Answer: 8:00 o'clock. Question: 8:00 o'clock. So she'd come, what, about 8:30, 8:40, or something? Answer: No, she'd come about quarter to 8:00 o'clock. Question: Quarter to 8:00, and then she'd leave around 1:00 or 1:30? Answer: 1:15, 1:30, yeah.
The next reference is page 64, line 18, through 65, line 5.
Question: Okay. The times where you had George in your -- in your bedroom, what times of day would that typically be? Answer: Probably nighttime.
Question: Probably in the nighttime?
Answer: Probably.
Question: Like when? What time of night?
Answer: 7:00, 8:00 o'clock; 8:00 o'clock, 9:00 o'clock. I don't know.
Question: And how long would he be in the room with you for, the bedroom?
Answer: Half an hour or -- a half an hour to an hour or so.
Question: Okay. Did it ever occur in the daytime?
Answer: I can't remember any.
Next is 75, lines 20 through 25.
Question: Okay. Would he come over also during the daytime?
Answer: Very seldom. Daytime, they were kind of busy with school and everything --
Question: Uh-huh.
Answer: -- unless it was a day off school, or something like that, you know.
Question: Did you at any point in time give George a key to the rectory? Answer: Yes. How -- when about did you give him a key to the rectory? I don't know. Probably '63, '64. Question: Did you tell anyone that you were giving him a key to the rectory? Answer: No. Question: Do you think Ms. -- did you inform Ms. Zeilman in any way that he had a key to the rectory? Answer: No. Question: Did he ever use that key, to your knowledge? Answer: I presume. "Question: Why do you presume that? Answer: Because I didn't have to open the door."
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Question: Did George or Howard ever masturbate you?
Answer: No, I would never let them do that.
Question: And you -- strike that. Did you do that to them?
Answer: No, I didn't masturbate them. They must have misunderstood, mistaken it for getting close.
************************
And the last reference is 151, line 8 through 20.
Question: Did Mrs. Zeilman, to your knowledge, ever see you massaging either of the boys?
Answer: No.
Question: Did George or Howard ever masturbate you?
Answer: No, I would never let them do that.
Question: And you -- strike that. Did you do that to them?
Answer: No, I didn't masturbate them. They must have misunderstood, mistaken it for getting close.
Question: All right. So --
Answer: But there was no act of masturbation on my part or their part.
THE COURT: All right. Does that conclude it?
MS. McGUIRE: That concludes it, Your Honor.
THE COURT: All right. Ladies and gentlemen, we're going to let you folks go for the rest of the day. So we will see you next on Monday morning at 9:00 o'clock. You'll have the rest of the afternoon, then tomorrow, of course, and then the weekend off….
(Thereupon the jury retired from the courtroom and the following proceedings were held:)
THE COURT: The jurors have left. What has happened since we talked about this 30 minutes ago and I was told there were going to be two witnesses or so on Monday?
MR. ANDERSON: Well, I think -- I thought they were talking about their witnesses.
THE COURT: Well, I heard there was going to be Mr. McDaniel --
MR. ANDERSON: In our case in chief.
THE COURT: -- in your case.
MR. ANDERSON: Yes.
THE COURT: And then I thought they had, like, one seminary witness?
MS. McGUIRE: One, possibly two, Your Honor.
THE COURT: One, possibly --
MS. McGUIRE: But they won't take long.
THE COURT: I would think these would be very short. Is there going to be some surprises?
MR. ANDERSON: No, no, I'm not expecting anything lengthy, Your Honor. But I just didn't want to mislead you because I heard you say that. I didn't want you to mislead them because, you know.
THE COURT: Okay.
MR. ANDERSON: I think it's highly improbable that we would take the full day, I just didn't want you to think I was assuring you we were precluding any witnesses.
THE COURT: I'm planning to do the jury instruction conference Monday afternoon.
MR. ANDERSON: Yes, that's our plan.
MS. McGUIRE: Your Honor, I would like to ask -- all of our evidence is in, except the seminary witnesses, if they have rebuttal witnesses, if they would let us know that.
MR. ANDERSON: Well, of course.
THE COURT: Do you have any rebuttal witnesses yet?
MR. ANDERSON: Yeah, I'm going to call George on rebuttal. And right now, that's the only rebuttal witness I intend to call.
MS. McGUIRE: Okay.
THE COURT: And so you'll be -- you'll be meeting about jury instructions this afternoon, then?
MR. WEAKLEY: Actually, we've talked, and we're going to meet tomorrow morning --
THE COURT: All right. That's fine.
MR. WEAKLEY: -- by phone conference, so they can get back home.
THE COURT: Yeah. So hopefully the issues will be few for Monday.
MR. DE MARCO: I sure hope so. We certainly didn't propose voluminous instructions. To the extent there are issues, they ought to be fairly limited.
THE COURT: All right.
MR. WEAKLEY: I do --
THE COURT: Anything else?
MR. WEAKLEY: Your Honor, I would like to go ahead and make a motion for mistrial, based upon the projection of the exhibit not in evidence. I don't want to have some interpretation that we've waived it by not doing it timely. So based on the representation I made to the Court earlier this morning and yesterday, we'd make a motion for a mistrial.
THE COURT: Well, I'm going to deny that. I just -- I'm convinced it was inadvertent, I'm convinced it was brief, and I'm convinced it was non prejudicial because, as I've said, I can't read the exhibits when they're projected on that screen unless they're magnified. And there's no showing that this document was magnified. So I just don't think it amounts to a hill of beans, frankly, so I'll deny the motion.
MR. WEAKLEY: Thank you, Your Honor.
THE COURT: Anything else?
MR. ANDERSON: Just logistically in the courtroom, the - Your Honor is halfway -- is -- the jury's on the other side of the courtroom from Your Honor, and the projection is on the far end. So they are twice --
THE COURT: They're further away than I am.
MR. ANDERSON: That's what I wanted to get out.
THE COURT: Although they're not at an angle; they're looking at it straight on. I'm looking at it at an angle. Frankly, I've never looked at it from the jury box. I don't know. I'm assuming they can't see it any better than I can. Anything else?
MR. WEAKLEY: No, Your Honor.
MR. ANDERSON: No.
THE COURT: Okay. We'll see you Monday morning at 9:00 o'clock, then.
MR. DE MARCO: Thank you, Your Honor.
MR. WEAKLEY: Thank you.
(Thereupon the proceedings concluded.)
*****************
More on Father Rod Craig of St. Mary’s Catholic Church, Visalia, California:
"Fr. Craig was ordained in Wasco on May 21, 1977, by Bishop Hugh A. Donohoe. His first assignment was to Our Lady of Victory, Fresno and then became chaplain and taught religion to Juniors and Seniors at San Joaquin Memorial High School from 1978-1983.
"Fr. Craig was assigned to Our Lady of the Snows in Yosemite National Park from 1980-1986, and did some work at St. Joseph’s in Mariposa. He also served at St. Anthony’s in Atwater from 1986-1994 and at that time was appointed as Director of Vocations for the Diocese, a position that he held through 2002. Fr. Craig later became administrator of St. Jude’s in Easton from 1997 through 2003 as well as served at St. Catherine of Siena in Dinuba in 2003.
Background:
In 2002 the California State Legislature opened a one-year window in the statute of limitations for civil lawsuits to be filed regarding child sex crimes, where a corporate entity bore responsibility. Out of thousands of lawsuits filed during the one-year window 2003, only three plaintiffs went all the way to a jury trial: Joey Piscitelli’s case in San Francisco against the Salesians Religious Order, which plaintiff won, and the cases of brothers George and Howard Santillan concerning Monsignor Anthony Herdegen in Wasco, CA. In that case, tried in Superior Court in Fresno County, a motion for new trial was won by one plaintiff and motion for appeal filed for the other plaintiff. The Church responded, now the Santillan case or cases may or may not be retried sometime in the future....
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* RE MAHONY TESTIMONY: The transcript for March 17, 2009, when Roger Mahony testified, arrived in City of Angels email as a PDF from a scan, so we were unable to copy and paste it into a word document. As a result City of Angels Lady has to copy-type all 164 pages, a task we are about to complete.
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REPEATING FOR EMPHASIS:
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FATHER CRAIG: Okay. All right. Thank you. [READS] "Dear Father Anthony Herdegen: We, the members of the Serra Club of Fresno, extend to you our heartfelt thank you for your steadfast devotion and loyalty to our faith. We thank you, support you, and love you for all that you do in ministering to us. We will continue to pray for you each and every day, and we are therefore now --we are there for you now more than ever. We boldly defend you. We are grateful for the many services that you perform, and from the depths of our hearts, we give Thanks to Almighty God for your ministry. We know that your God-given faith will deliver you through this current crisis with humility, faith, and fortitude. The current crisis has given all of us an opportunity to refocus our lives on Christ, and a deeper spirituality will arise from the ashes of the scandal. God bless you and may the Lord Jesus Christ continue to guide you and protect you. With all our love and respect, The Serra Club of Fresno."
Q Father Craig, why are you writing in 2002, if you didn't know that any issues had surfaced regarding Herdegen, number one, that you would boldly defend him?
A Uh – …
Q And it also refers to the current crisis, that is, the current crisis that -- when you say "current crisis," did you believe that Monsignor Herdegen was being falsely accused by the Santillans?
A That's correct.
Q You believe that to this day, don't you?
A Yes.
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