.
As promised, here is the transcript of Roger Mahony testifying in a Fresno, California, trial where two brothers sued the Catholic Church for allowing Monsignor Anthony Herdegen to commit pedophile crimes against them. As
City of Angels reported here January 11, 2011, tbe cross examination by Jeff Anderson, plaintiff attorney, of Cardinal Mahony, Archbishop of Los Angeles, is a lot like the
Abbott and Costello "Who's On First" comedy routine as The Witness rarely misses an opportunity to evade an answer.
Mahony officially leaves office at the end of this month (Feb. 2011) and remains an influential person in politics, religion, and culture in California, despite the fact he oversaw an archdiocese where dozens of Catholic priests were able to sexually molest hundreds of children in recent decades (510 plaintiffs filed lawsuits in 2003 and were awarded settlements in 2007 for crimes of pedophile priests in L.A.).
In cross examination, Mahony goes from arrogant clipped short answers to total evasion, for example, the Cardinal asks repeatedly: “Is this a hypothetical?" and "What time period are we speaking of?” Then after several hours of Mahony's evasion, attorneys defending the Catholic Church are able to argue that the Cardinal has been on the witness stand longer than the previously agreed upon period of time.
Mahony claims to have little knowledge of the issue of pedophile priests, when in fact he’s been at the center of the American Catholic bishops' handling of the problem at least since 1992 when a group of bishops led by Roger Mahony met in Washington D.C. with victims of Catholic clergy sex abuse, according to “Efforts To Combat Clergy Sexual Abuse Against Minors: A Chronology” which can be read at
http://www.nccbuscc.org/comm/kit2.shtmlThe transcript below, in my mind, gives a good lesson in how to avoid answering questions under oath and retire in luxury from a life of criminal negligence.
One reader who made publication of this transcript possible was Ray Higgins of Santa Barbara, who manages a trust to pay therapy costs for persons raped by Catholic priests. Email Higgins at
therapytrust@cox.net for more information. This document arrived in my email in a form that could not be copy and pasted, so I had to type it in full. If readers find any errors of note, please email me at
cityofangelslady@yahoo.com so I can make corrections. -
Kay EbelingTestimony of Roger Mahony: March 17 2009, in the case of Santillan versus Bishop of FresnoTHE COURT: All right, let’s bring in the jury. … All right, welcome back ladies and gentlemen. Please have a seat, everyone. We'll be back on the record with counsel and the jurors present. And who will be calling the next witness?
MR. ANDERSON: We'll be calling Cardinal Roger Mahony.
THE COURT: All right.
MR. ANDERSON: Under 775, Your Honor.
THE COURT: All right. Cardinal Mahony, would you come up please. Would you raise your right hand and face the clerk and be sworn.
ROGER MICHAEL MAHONY, called as a witness by and on behalf of the Plaintiffs, having been fully duly sworn, testified as follows pursuant to Evidence Code Section 776:
THE COURT: Have a seat up here, please. And would you state your full name and spell your last name, please.
THE WITNESS: Roger Michael Mahony, spelled M-A-H-O-N-Y.
THE COURT: Thank you. Mr. Anderson, go right ahead.
MR. ANDERSON: Thank you, Your Honor.
CROSS EXAMINATION BY MR. ANDERSON:
Q Good morning, Cardinal. Do you prefer to be referred to as Cardinal or Eminence?
A Cardinal would be fine.
Q Cardinal, you were ordained a priest of the Diocese of Fresno, were you not?
A That's correct.
Q: And prior to your ordination into the Diocese of Fresno, you had to go through a process of formation; correct?
A Yes, at the seminary.
Q And it had to be determined by a number of superiors and ultimately the Bishop to be sure that you were fit to serve in the priesthood; correct?
A t would be accurate, yes.
Q and before actual ordination, that is, admission into the priesthood, you were ordained a deacon and prepared for your diaconate; correct?
A Actually we are ordained as subdeacons first and then deacons and then priests.
**************
Q: And at the time of your ordination into the diaconate and your ordination into the priesthood, you, as any other priest of the Diocese of Fresno, were required to make a promise of obedience; correct?
A: We actually made the promise of obedience at the ordination rite itself.
Q: And there’s a ceremony in which you promise to obey the Bishop and his successors; correct?
A: Yes, that is correct.
************************ Q: And your actual ordination as a priest was in 1962?
A: Yes, May 1st, 1962.
Q: Ands your ordination and- for the diaconate was in what year?
A: I believe it was early November 1961.
Q: And prior to that- and I'm not going to go into it in any detail, you went through minor seminary, you went through seminary and a lot of theological training, correct?
A: Yes, that's correct.
Q: All in preparation for the priesthood?
A: Yes, uh-huh.
Q: And ultimately, it was the Bishop that presided the Diocese of Fresno that permitted your ordination?
A: Uh-huh, yes, that's correct.
Q: And at the time of your ordination into the diaconate and your ordination into the priesthood, you, as any other priest of the Diocese of Fresno, were required to make a promise of obedience; correct?
A: We actually made the promise of obedience at the ordination rite itself.
Q: And there’s a ceremony in which you promise to obey the Bishop and his successors; correct?
A: Yes, that is correct.
Q: And that promise of obedience means that once you became a priest of the Diocese, in this case, Fresno, you are required to obey that Bishop and then all the Bishops that are to follow him; correct?
A: Yes that is correct.
Q: And at the same time is it also correct to say that you make and take a promise of celibacy?
A: That actually is done at the time of subdiaconate.
Q: And that's prior to the ordination and repeated or assumed that it is to be continued at the time of ordination, correct?
A: yes.
**********
MR. ANDERSON: Q: What does “celibacy” mean when you promise it to the superior?
A: Uh, in our Catholic tradition, celibacy on the part of priests means that a priest has determined that he would not marry and would remain unmarried throughout his life.
Q: So if somebody says celibate, chastity, chastity and celibacy, they're effectively referring to the same thing: priests are not to engage in sex with men, women or children?
MS. McGUIRE: I'm going to object. Calls for speculation.
THE COURT: Overruled.
****************Q: So for the purposes of this courtroom, it's fair to say that at the time you're allowed to become a priest by the Bishop in Fresno, you make two promises to your superior, the Bishop. One of obedience, another is of celibacy; correct?
A: Yes that is correct.
Q: What does “celibacy” mean when you promise it to the superior?
A: Uh, in our Catholic tradition, celibacy on the part of priests means that a priest has determined that he would not marry and would remain unmarried throughout his life.
Q: And does that also mean at the time you made it and it continues that you and anybody that makes it, any cleric that makes it, is not to engage in any kind of sex with men, women, or children?
A: Actually, that doesn't go to the issue of celibacy. It's more to the virtue of chastity, whereby one lives out one’s life without any sins or actions without chastity.
Q: So is it fair to say that chastity, as you use it, is really a part of the expectation of the celibacy?
A: Yes, I would say so.
Q: So if somebody says celibate, chastity, chastity and celibacy, they're effectively referring to the same thing: priests are not to engage in sex with men, women or children?
MS. McGUIRE: I'm going to object. Calls for speculation.
THE COURT: Overruled.
THE WITNESS: No, you're actually confusing the two. Celibacy, as I explained, means one thing. Chastity is a much broader term, and it means any kind of sexual conduct, whether it be words or actions or pictures or anything else.
*****************
MR. ANDERSON: Q: And as a priest of the Diocese of Fresno and any priest in any Diocese, there is an expectation that they will remain throughout their time as a priest, chaste, correct?
A: Yes. That is our vow, that is our commitment.
Q: Is it fair to say, then, that when you were ordained and allowed to become a priest of the Diocese of Fresno, that the Bishop by that action made a representation to the community of faith that you and any other priest like you were safe and celibate?
A: Yes, I think that would be a fair assumption.
*************************MR. ANDERSON: Q: And as a priest of the Diocese of Fresno and any priest in any Diocese, there is an expectation that they will remain throughout their time as a priest, chaste, correct?
A: Yes. That is our vow, that is our commitment.
Q: And that vow and that commitment is not only to the Bishop who ordains you, but- but it is to the community of faith over whom you work and serve; correct?
A: Well, actually, it's primarily to God, as a vow to God, and then exercised in your ministry with the people where you are assigned.
Q: Is it fair to say, then, that when you were ordained and allowed to become a priest of the Diocese of Fresno, that the Bishop by that action made a representation to the community of faith that you and any other priest like you were safe and celibate?
A: Yes, I think that would be a fair assumption.
Q: And that you and any other priest ordained was also trustworthy, that is, worthy of the trust by the community of faith?
A: Yes.
A: And that when you wear a collar, are allowed to wear a collar as you are today, in the public and in private, that is, in effect, a representation of your fitness to be a priest?
A: Yes, that would be accurate.
Q: And in your many years of experience, when people would see that collar, it is really, is it fair to say, that- I’ll withdraw that one.
**********
Q: Is it correct to say that you and all the other clerics were required to follow the law of the Church known as the canon law?
A: Yes. Of course I can only speak for myself; I can’t speak for all the other priests and what their intentions were. But it was- it would be presumed.
***************** Cardinal, after your ordination into the Diocese of Fresno, you and- as a priest of the Diocese of Fresno worked under then-Bishop Willinger who’s now deceased; correct?
A: Yes. I think it's important, since we're dealing with a legal matter, it actually was the Diocese of Monterey-Fresno. So when I was ordained in 1962, this was part of the Diocese of Monterey-Fresno.
Q: Okay. I was going to get to that. And at the same time later it split out so that it became simply the Diocese of Fresno instead of the Diocese of Monterey-Fresno, correct?
A: Yes, uh-huh.
Q: What year did it split out?
A: I believe it was the end of 1967.
Q: When you became a priest- and when I say you, I'm referring to you and all the other priests in the Diocese of Fresno now- is it correct to say that you and all the other clerics were required to follow the law of the Church known as the canon law?
A: Yes. Of course I can only speak for myself; I can’t speak for all the other priests and what their intentions were. But it was- it would be presumed.
Q: And is it also correct to say that the canon law, the law of the church, essentially is the policy manual, the handbook, the protocol, and the law that would apply to the obligations of a priest to his community of faith and the Bishop to a priest?
A: That would be part of it. The Code of Canon Law is a very extensive book that deals with the church worldwide, deals with the Pope, deals with Cardinals. It deals with all the sacraments of the church. IT deals with various penalties and crimes. It is a very expansive book. And some of the sections you refer are a part of that Code of Canon Law.
Q: You mentioned that in the canon law there are crimes. Is it correct to say that a priest engaging in sex with a child is a crime in the canon law and has always been; correct?
A: Yes, that is correct.
Q: And it's also correct to say that there are two codes at least in the last century that were promulgated by the Vatican office? The first was in 1917; the second in 1983?
A: That's correct, there are two.
Q: And in both of those codes, it was a canon crime for a priest to engage in sex with any individual; correct?
A: I'm not so sure it's listed as a crime for any kind of activity.
Q: For children it is and was?
A: For children, yes.
Q: Always has been, correct?
A: In the 1917 and 1983 codes that I'm familiar with, yes.
Q: I’d like to go back, then, to some of your experiences as a priest of the Diocese of Fresno, Cardinal. You were assigned by either then-Bishop- and is it correct to say that is is the Bishop that is responsible for the- not only the ordination of a priest but the assignment of a priest?
A: Yes, it is the Bishop who ordains you and then assigns you to a parish or a ministry.
Q: And it's correct to say that it's the Bishop that also is responsible for transferring a priest?
A: Yes, it is the prerogative of the Bishop to transfer a priest.
Q: And it's also the responsibility of the Bishop to confer the faculties of the priest to minister in and out of the Diocese; correct?
A: Yes, faculties meg the official permissions.
Q: Yes. And that's what I was going to get to. Faculties are, in essence, the ability of the priest to hold himself out to the community of faith and minister the sacraments in accord with it; correct?
A: Yes, that's what faculties would imply, yes.
**********
Q: And the Diocese of Fresno is a corporation ole and the Bishop- or the title of the corporation is the Roman Catholic Bishop for the Diocese of Fresno, a corporation sole.
Need to ask you, this corporation, the Diocese of Fresno, has in it and a part of it parishes, does it not?
A: Yes, that's correct, divided up geographically into parishes.
***************Q: Your first assignment in 1962 was as an assistant pastor at St. John’s Cathedral?
A: Yes, just down the street here.
Q: And you, about two years later, were appointed by the Bishop to be the director of Catholic Charities here?
A: Yes, that's correct.
Q: And the ladies and gentlemen of the jury have heard that the Diocese of Fresno is a corporation ole and the Bishop- or the title of the corporation is the Roman Catholic Bishop for the Diocese of Fresno, a corporation sole.
Need to ask you, this corporation, the Diocese of Fresno, has in it and a part of it parishes, does it not?
A: Yes, that's correct, divided up geographically into parishes.
Q: And it would be fair to say, for purposes of just illustration, that the Diocese is organized like a pyramid; and at the top of the pyramid is the Bishop?
A: Well, I guess one could use a number of images. That would be one.
Q: Okay. And then beneath the Bishop is it fair to say that there are a number of officials that the Bishop appoints and who work underneath the Bishop?
A: Yes, that's correct. There’s a whole series of different people with different responsibilities.
Q: And if I- instead of using the pyramid, would you prefer that I use the word “hierarchy”? Is that an apt description?
A: Ax, any of those words works fine.
Q: So in talking about this pyramid and hierarchy, the Bishop is at the top of that. And is it also correct to say, Cardinal, that it is the Holy Father that appoints the Bishop?
A: Yes, as the Pope is the one who actually appoints the Bishop to be the Bishop of the Diocese.
Q: And the Bishops in canon law and in the church answers only, then, to the Holy Father, the Pope?
A: Yes, ultimately the Bishop reports directly to the Pope.
***************
Q: A Bishop is a descendant of the apostles?
A: Actually the word “successor” is probably the one we use most. “Descendant” is not the same thing.
Q: And the community of faith are taught that, are they not?
A: Yes, uh-huh….
MR. ANDERSON: Q: What is the community of faith taught to believe about why and how a priest is holy?...
A: Holy? Well, priests are- are chosen by the Church as started out in the Acts of the Apostles, chosen to preside over the community of prayer and love.
************************Q: And it's also taught that the- a Bishop is a descendent of the apostles, is it not?
A: Would you repeat that?
Q: A Bishop is a descendant of the apostles?
A: Actually the word “successor” is probably the one we use most. “Descendant” is not the same thing.
Q: Okay, a successor of the apostles?
A: Yes.
Q: And the community of faith are taught that, are they not?
A: Yes, uh-huh.
Q: And it's also correct to say that a priest is also taught to be of divine original?
MS. McGUIRE: Objection. Vague.
THE COURT: Do you understand the term “divine origin,” Cardinal Mahony?
THE WITNESS: Yeah, I'm not sure exactly what you’re trying to get at.
MR. ANDERSON: I’ll rephrase.
THE WITNESS: Rephrase, please.
MR. ANDERSON: Q: What is the community of faith taught to believe about why and how a priest is holy?
A: Why a priest is-
Q: Holy.
A: Holy? Well, priests are- are chosen by the Church as started out in the Acts of the Apostles, chosen to preside over the community of prayer and love and to celebrate the Eucharist and the baptism and the sacrament. So that's the origin of that term and that office in the church.
Q: and in the hierarchy or the pyramid we were just talking about, right beneath the Bishop and appointed by the Bishop are a number of officials. One of those is the vicar general; correct?
A: Yes, in every Diocese the Bishop has a vicar general appointed.
Q: And is it fair to say that in many Dioceses, as in Fresno, the vicar general is often considered kind of a right-hand man to the Bishop?
MS. McGUIRE: Objection.
MR. ANDERSON: Q: He delegates responsibility to him?
MS. McGUIRE: Speculation. Foundation.
THE COURT: Sustained.
MR. ANDERSON: Q: how would you describe the responsibilities of the vicar general in the Diocese of Fresno?
A: Well the very word “vicar” means someone takes the place of somebody else. So the Bishop delegates the vicar general to handle a number of routine matters in the Diocese for him, some of which he is not required to actually ask the Bishop in advance. And he’s one that serves maybe as an executive officer for the Diocese in name of the Bishop.
Q: Priests and bishops are often referred to as vicars. Does that mean that term is used that they take the place of God?
A: Well, the word “vicar” does mean taking the place of another. So the- for example, the parish would have a pastor, and then the associate was often referred to as the parochial vicar, that is, the one who is assisting the pastor with servicing, ministering to people of the parish.
Q: Another officer in the Diocese is the chancellor; correct?
A: Yes, that's correct.
Q: And you served in the Diocese, worked, were appointed in the Diocese as both chancellor and vicar general at various times; correct?
A: Yes, at various times, not at the same time.
Q: I’ll get to that.
And in this hierarchy, is it correct, Cardinal, to say that a Bishop is in charge of and operates the schools in the Diocese, the Catholic schools?
A: Yes, that would be correct, all of our Catholic schools.
**********
Q: Is it also correct to say that the Bishop and the corporation sole of the Bishop owns and operates the parishes?
A; Yes, owns and operates them.
*********************Q: Is it also correct to say that the Bishop and the corporation sole of the Bishop owns and operates the parishes?
A; Yes, owns and operates them. However, taking into account canon law, which gives certain rights and duties to the parish, the parishioners, and the pastor.
Q: And everything we're talking about here is really guided by the canon law, is it not?
A: Yes, that's- that's our official law of the church, canon law.
Q: Okay. And the Bishop also creates a number of boards that consult him in matters of personnel and administration; correct?
A: Yes, that is correct.
Q: Such as priest personnel board and other things like that?
A: Yes.
Q: Okay. And in the Diocese of Fresno and in this hierarchy or pyramid, there’s also deans, are there not?
A: Yes. There- geographical areas oftentimes are entrusted to the care of one priest who is referred to as the dean.
Q: And in the Diocese of Fresno, geographical areas are broken up into deaneries, correct?
A: Yes, that is correct.
Q: And in each deanery there is a dean; right?
A: Yes, that is correct.
Q: And now there are a number of hospitals in the Diocese that are owned and/or operated by the Diocese of Fresno; correct?
MS. McGUIRE: Objection. Relevance
THE COURT: Sustained.
MR. ANDERSON: Q: In 1964 you were appointed director of Catholic Charities, and you worked as the director of Catholic Charities for several years, did you not?
A: Yes. I became director of Catholic Charities in 1964, just down the street, Tuolomne and F Street, right over here, and had the great joy of serving there up to 1970.
Q: And in 1967 you were- if my records are correct, Bishop Manning was appointed to replace Bishop Willinger; is that correct?
A: What year?
Q: ’67.
A: That's correct. 1967, the Diocese was divided into two; and Bishop Manning, who had been Auxiliary Bishop in Los Angeles, became then the Bishop of the Fresno side.
Q: And about that same time you were appointed to the priest personnel board and the senate; correct?
A: Yes.
Q: Okay, and in 1969, two years later, Bishop- now deceased Bishop Donohoe, was appointed to succeed then-Bishop Manning; correct?
A: Yes. That's Correct. Bishop Manning was transferred back to Los Angeles; and Bishop Donohoe, from Stockton, came here.
Q: Okay. And Bishop Manning went on to move through the ranks to ultimately become your predecessor in Archdiocese of Los Angeles as the Cardinal Archbishop there; correct?
A: Yes, that's correct, yes.
Q: It's also correct that in 1973 you became the rector at St. John’s Cathedral over here?
A: Yes, I became the pastor in 1973.
Q: And in 1974 you, among other things, became a member of the Board of Trustees of St. Patrick’s Seminary?
A: Yes, that's correct.
Q: And minor and major seminaries and where priests are trained both as youth and adults to become priests?
A: Yes, uh-huh, that's right.
Q: And in 1975 you were appointed by the Holy Father to be Auxiliary Bishop, were you not?
A: Yes, that is correct. Early January 1975.
Q: Now, Auxiliary Bishop means that you were serving and working as appointed to work at the same time as a then- another Bishop; correct?
A: Yes. Auxiliary Bishop means Assistant Bishop, someone that assists. Because the Diocese of Fresno is very large geographically, still is, and so Bishop Donohoe asked for an Assistant Bishop to help cover this large territory.
Q: And the Holy Father, the Pope, as we refer to him here- should we refer to him as Holy Father or Pope, Cardinal?
A: Either. He responds to both.
Q: Okay, then so I can get through this quickly, listen to my questions, and if it calls for a yes or no, just try to answer it.’
Is it correct to say, then that the Holy Father appointed you Auxiliary Bishop?
A: Yes, that's correct.
**********
Q: I want to ask you about supervision now in the Diocese of Fresno. It's correct to say, is it not, Cardinal, that ultimately it is the Bishop that is responsible for supervising the priests of the Dioceses?
A: Yes, the ultimate responsibility lies with the Bishop.
*******************Q: And once appointed as a Bishop, you then became a member of what was then the Catholic Conference of Bishops; correct?
A: Yes. When you become a Bishop in a country, you become a member of that Conference of Bishops of that same country.
Q: And every Diocese in the U.S. and every Bishop in it were members and are of the Catholic Conference of Bishops?
A: Yes, that's right.
Q: I want to ask you about supervision now in the Diocese of Fresno. It's correct to say, is it not, Cardinal, that ultimately it is the Bishop that is responsible for supervising the priests of the Dioceses?
A: Yes, the ultimate responsibility lies with the Bishop.
Q: And it's also correct to say that the Bishop has supervisory responsibility for lay employees of the Diocese?
A: Not in the same way.
Q: I was going to get to that.
But Bishop, in effect, delegates that responsibility for supervision to a number of folks, correct?
A: Yes, uh-huh, for example in a parish.
Q: And in a school, the Bishop appoints a superintendent of schools and delegates to the superintendent supervision of the schools?
MS. McGUIRE: Objection. Relevance.
THE COURT: Overruled.
MR. ANDERSON: Q: Is that correct?
A: Yes, that's correct, superintendent of schools then has control of the schools.
Q: And the Bishop appoints that superintendent?
A: Yes, that's correct, that person’s appointed by the Bishop.
Q: You became chancellor in 1970, correct?
A: Yes, it was 1970.
Q: Appointed by the Bishop then Donohoe, correct, to be chancellor, his chancellor?
A: Yes, that's correct, Bishop Donohoe.
Q: And is it correct to say that the Dioceses maintained files on every priest at that time?
A: Yes, that's correct.
Q: And it's also correct to say that under canon law, every Diocese and every Bishop is required to maintain files pertaining to the priests of that Diocese?
A: Yes, and all of the ordinary business of the Diocese, that's correct.
Q: And, Cardinal, do you remember Monsignor Herdegen.
A: I do.
Q: I have in my hands what has been marked for purpose of identification as Exhibit A-1 and A-2. And it has been produced her as a file pertaining to Monsignor Herdegen. You know him to have been and still be a priest of the Diocese of Fresno?
MS. McGUIRE: Objection. Speculation.
THE COURT: Sustained.
MR. ANDERSON: Q: Did you know Monsignor Herdegen to be a priest?
A: Yes, when I was here, Monsignor Herdegen was a priest here, yes.
****************
THE WITNESS: Q: The files pertaining to the priests of the Diocese of Fresno by the Bishop and his office, correct?
A: Yes, uh-huh, true.
Q: Now, it's also correct to say, Cardinal, that under the canon law certain matters go into a secret archival file pertaining to priests?
A: Yes, there was a separate set of files that had certain personal information that, for whatever reasons, was kept separate from the main file……
Q: And that is called by some to be, at least under canon law, the secret archive file; correct?
A: Yes, that's one of its names.
Q: Why is it secret, Cardinal?
*************************Q: And pertaining to the maintenance of the files of the priests, when you became chancellor, you had responsibility for maintenance of the priest file, did you not?
A: Well, possibly canonically, but a chancellor was utilized by each Bishop in the manner in which they chose. And in my case, I really didn't have much to do with the files at all.
Q: And in any case, it was the responsibility of the Diocese officials, ultimately the Bishop, to maintain the priest file under canon law.
A: Yes. In my case it was- usually Bishop Donohoe preferred to have the vicar general handle most of that regularly.
Q: And the files of the Diocese of Fresno then, were kept in the ordinary course of the business of the Diocese of Fresno pertaining to the activities of the priests; correct?
MS. McGUIRE: Objection. Speculation. Calls for a legal conclusion.
THE COURT: Overruled.
THE WITNESS: Yeah, I'm not quite sure I understand the question.
THE WITNESS: Q: The files pertaining to the priests of the Diocese of Fresno by the Bishop and his office, correct?
A: Yes, uh-huh, true.
Q: Now, it's also correct to say, Cardinal, that under the canon law certain matters go into a secret archival file pertaining to priests?
A: Yes, there was a separate set of files that had certain personal information that, for whatever reasons, was kept separate from the main file.
Q: And that is called by some to be, at least under canon law, the secret archive file; correct?
A: Yes, that's one of its names.
Q: Why is it secret, Cardinal?
A: It's secret because there’s certain things that were put in there that would not be available to secretaries and other people when o were doing regular filing. For example, if a priest was being transferred, there would be a copy of the transfer letter. The secretary would routinely put that in the file. But if there was a problem with immigration or some personal matter dealing with immigration- or some- maybe a difficulty with drinking, or whatever, that would be put in a separate file in order to protect the privacy of the priest.
Q: And in this matter I have heard the secret file referred to here as a confidential file. Are you telling us that the file, the archive file that we're talking about here, is confidential?
MS. McGUIRE: I'm going to object that it's vague.
THE COURT: Do you understand the question?
THE WITNESS: Well, all of these terms were used by various people at various times for the same file.
THE COURT: The objection’s overruled. He answered the question.
MR. ANDERSON: Q: And I'm referring to what we've marked for purpose of identification as Exhibit C. And is it correct to say that a confidential or secret archival file was maintained by the Diocese of Fresno from 1962 until you became appointed a Bishop in Stockton in 1980?
MS. McGUIRE: Objection. Vague. Lacks foundation.
THE COURT: Sustained. The objection’s sustained. Would you rephrase, please.
MR. ANDERSON: Q: Are you familiar with the practice of the Diocese of Fresno maintaining a file on a priest while you were in Fresno, a priest file?
A: Oh, yes, uh-huh.
Q: And that was kept at the chancery; right?
A: Yes, yes.
Q: And it would look something like this, right?
A: That's correct. That would be a good example.
**********
Q: Now, directing your attention to the confidential file, or the secret archival file. It's also correct to say that it was the practice of the Diocese of Fresno to keep a confidential or a secret archival file on any matters that pertained to confidential things?
A: Yes. That doesn't mean that every priest had one of those files. There were not many of those files.
Q: In your time from ’62 to ’80, how many were there- how many confidential files were there?
A: You know, I just don't recall. It's a long time ago…..
Q: And is it also correct to say that under the canon law that any matter that was deemed to be scandalous was required by the Bishop to be placed into the confidential file?
MS. McGUIRE: Objection. Vague.
THE COURT: Do you understand the question, Cardinal Mahony?
THE WITNESS: I don't understand the word “scandalous.”
*********************** Q: Okay. And they did that from the time you became ordained until you were appointed Bishop in 19- Stockton in 1980 while you were in Fresno?
A: Yes, uh-huh.
Q: Okay.
A: Yes.
Q: Now, directing your attention to the confidential file, or the secret archival file. It's also correct to say that it was the practice of the Diocese of Fresno to keep a confidential or a secret archival file on any matters that pertained to confidential things?
A: Yes. That doesn't mean that every priest had one of those files. There were not many of those files.
Q: In your time from ’62 to ’80, how many were there- how many confidential files were there?
A: You know, I just don't recall. It's a long time ago.
Q: Under canon law it's the Bishop’s responsibility to keep the confidential files or the archival files; right?
A: Yes, that's part of the Bishop’s job.
Q: And is it also correct to say that under the canon law that any matter that was deemed to be scandalous was required by the Bishop to be placed into the confidential file?
MS. McGUIRE: Objection. Vague.
THE COURT: Do you understand the question, Cardinal Mahony?
THE WITNESS: I don't understand the word “scandalous.”
THE COURT: All right Very well. The objection’s sustained.
MR. ANDERSON: Q: Are you familiar with Canon 489, Cardinal, that says any matter that is deemed to be scandalous is to be placed in the confidential file for the Bishop and his designee’s eyes only?
A: Is that the 1917 code?
Q: 1983 is 489.
A: During the time I served as chancellor, that was not the code in effect. It was the 1917 code. That new code came into effect after I had left here.
Q: And there was a similar provision that preceded the ’83 code. The 1917 code also had a code section that required the keeping of a confidential file, correct?
A: I believe so. I believe that's correct, yes.
Q: And you said that you didn't have many occasions during your term in the Diocese of Fresno from ’62 to ’80 to look at the confidential files of priests. On how many occasions did you?
A: It would be very few. Monsignor Denis Doherty was the vicar general, tended to be the one that handled any personnel difficulties like that.
Q: And at all times between 1962 and 1980, Father, then Monsignor, Herdegen was a priest of the Diocese of Fresno, correct?
A: During which years?
Q: ’62 to 80, the times at which you-
A: Yes, he was a priest here while I was here.
Q: And he was actually a priest here when you were ordained here, correct?
A: Yes, he was a priest here while I was here.
Q: And he was actually a priest here when you were ordained here, correct?
A: Yes, he was.
***************
MR. ANDERSON: Your Honor, I’ll offer Exhibit A-1 and A-2 as the Herdegen file kept in the ordinary course.
THE COURT: Any objection?
MS. McGUIRE: I’ll object that it lacks foundation, relevance objections, 352. And in terms of the ordinary course of business, this is not statistical. It's not a business record.
THE COURT: We're not going to argue the objections. They're sustained.
************************Q: And he was a priest here when you were appointed by the Holy Father in 1980 to be the Bishop in Stockton?
A: Yes, he was, uh-huh.
MR. ANDERSON: Your Honor, I’ll offer Exhibit A-1 and A-2 as the Herdegen file kept in the ordinary course.
THE COURT: Any objection?
MS. McGUIRE: I’ll object that it lacks foundation, relevance objections, 352. And in terms of the ordinary course of business, this is not statistical. It's not a business record.
THE COURT: We're not going to argue the objections. They're sustained. We'll have to take that up on a break.
MR. ANDERSON: There was a foundational matter, Your Honor.
THE COURT: Well you can attempt to lay the foundation through Cardinal Mahony, if you’d like, but for now the objection’s sustained.
MR. ANDERSON: Q: It's also correct, Cardinal, to say that during your time in the Diocese of Fresno, you have no recollection of ever having looked at, if there was, a secret archival file maintained pertaining to Herdegen, ever having looked at it, correct?
A: I don't recall having looked at it.
Q: When you were chancellor, you were the one designated by the Bishop to put confidential matters into the confidential file; correct?
A: No, that's not correct.
Q: Who was designated?
A: It was the Code of Canon Law that had the chancellor as the custodian, but every Diocese did it differently. And most personnel matters, I really had nothing to do with those files.
Q: And so under canon law the chancellor was the custodian of the file; correct?
A: Yes.
**************
Q: And when I'm referring to A-1 and A-2, you would have been the custodian of that priest file, correct, as chancellor?
A: Technically, yes….
Q: Cardinal, you said that you don't know what I mean when I use the word “scandalous.” Haven’t you heard that word before used by fellow clerics in the hierarchy?
A: You know, the word “scandalous” means- covers a lot of things in human behavior and human conduct.
****************************Q: And you were the chancellor for what period of time?
A: From 1970 to 1975, five years.
Q: And when I'm referring to A-1 and A-2, you would have been the custodian of that priest file, correct, as chancellor?
A: Technically, yes.
Q: And during that same time, you would have been the custodian of the confidential file, which we've marked, at least referred to, as Exhibit C.
A: Yes, again, technically.
Q: Cardinal, you said that you don't know what I mean when I use the word “scandalous.” Haven’t you heard that word before used by fellow clerics in the hierarchy?
A: You know, the word “scandalous” means- covers a lot of things in human behavior and human conduct.
Q: In the clerical culture, that is, among the priests, the Bishops, the deacons, and the ordained, that has particular meaning, does it not?
A: I don't think so, no.
Q: Are you aware that scandal and the avoidance of it is referred to in canon law?
MS. McGUIRE: Objection. Vague.
THE COURT: Do you understand the question, Cardinal Mahony?
THE WITNESS: Yes.
THE COURT: The objection’s overruled. You may respond.
THE WITNESS: As I said, “scandal” can mean anything. It means a whole range of things.
MR. ANDERSON: Q: And I'm talking about the canon law and your understanding of it and its application. Are you aware that it has particular meaning in it?
A: You know, I’d have to refresh my memory on the canon law, because I don't remember exactly what it defines as scandalous.
Q: Do you have any recollection of being required to at any time from the- becoming a priest to the present of being required to put scandalous material into a confidential file?
MS. McGUIRE: Well, objection. Vague.
THE COURT: Overruled.
THE WITNESS: Well, certainly after 1975 my responsibilities really didn't- didn't deal with that, so you said up to the present time. I may have while I was chancellor from 1970 to ’75. I just can’t recall a specific case or piece of paper.
MR. ANDERSON: Q: Did you during that time ever direct anybody in Fresno to place confidential matters into the confidential file?
A: I don't recall myself asking someone else to do that.
Q: The confidential file was maintained at the chancery?
MS. McGUIRE: Well, objection. Vague. Which file?
THE COURT: Overruled- the objection’s sustained. Which confidential file.
******************
MR. ANDERSON: Q: All confidential files pertaining to the priests of the Diocese of Fresno were maintained at the chancery, were they not?
A: In the chancery office, there was a room, not a very large room, that had files in it; but because of overflow, many of those file cabinets, especially deceased priests, were kept in some other location in the old seminary. And I don't remember where; but there was a room, an archival room, somewhere where those were eventually transmitted, particularly after they died.
********************************MR. ANDERSON: Q: All confidential files pertaining to the priests of the Diocese of Fresno were maintained at the chancery, were they not?
A: In the chancery office, there was a room, not a very large room, that had files in it; but because of overflow, many of those file cabinets, especially deceased priests, were kept in some other location in the old seminary. And I don't remember where; but there was a room, an archival room, somewhere where those were eventually transmitted, particularly after they died.
Q: And that archival room had a lock on it and had access only by the Bishop and his designee; correct?
A: I really don't know. I don't think I was ever in it.
Q: Are you aware that under canon law it's required to be kept accessible only by the Bishop and the designee of the Bishop?
A: My recollection was that it was part of the old library- seminary was not in existence when I was there- part of the old library. And they took one of the rooms of the library and put old file folders in there of things many-many years ago.
Q: I’d like to talk for a moment about the rights and the obligations of clerics in the Diocese of Fresno. And when I use the term “cleric” and “priest,” that's an interchangeable term, is it not?
A: No it's not.
Q: How do you define a “cleric”?
A: A cleric is used as a more generic term in a church. Means anybody in those years who had been tonchered, and that is, gone through the file of admission, was known as a cleric. That was later changed after the Second Vatican Council to mean anybody who was ordained a deacon or beyond. So it's had different meanings in the life of the Church.
Q: So for our purposes here, post Vatican II- that's about late sixties, is it not, Vatican II?
A: Yes, it ended-
Q: Okay.
A: -in 1965.
**************
Q: Now, I’d like to ask you, Cardinal, about the rights and some of the obligations of the priests, the clerics. In this hierarchy of the Diocese and under the canon law, the offices of the priesthood and the Bishop are of divine institution, are they not?
A: Yes, in our understanding of Jesus Christ established in the church, yes.
Q: And this means that they were created and founded that way by Almighty God himself?
A: Yes, I think it would be correct to say that Jesus Christ set up the Church on Peter and the apostles and that structure carried forward…..
Q: And I'm talking about the canon law now. Is it correct to say that, in effect, under the canon law the Bishop is the shepherd?
A: Yes, that's one of the terms used.
Q: Shepherd of the priests, too?
A: Yes, uh-huh, as Jesus said, “I am the good shepherd,” in the same way.
**************************Q: Okay. And for purposes of our terms here, so that we're talking about the same thing, when we refer to a cleric post-Vatican II, that includes deacons, priests, and all those ordained-
A: Yes.
Q: -correct?
A: That would include at that time deacons, priests, in that category.
Q: Now, I’d like to ask you, Cardinal, about the rights and some of the obligations of the priests, the clerics. In this hierarchy of the Diocese and under the canon law, the offices of the priesthood and the Bishop are of divine institution, are they not?
A: Yes, in our understanding of Jesus Christ established in the church, yes.
Q: And this means that they were created and founded that way by Almighty God himself?
A: Yes, I think it would be correct to say that Jesus Christ set up the Church on Peter and the apostles and that structure carried forward.
Q: And is it also correct to say that only clerics can hold power in the Church under the canons?
A: I'm not sure what you mean by the word “power.”
Q: Okay. I’ll- is it correct to say that all the faithful must show reverence towards the clerics?
A: I think, yes, reverence would probably be a good word.
Q: Is it correct to say that only clerics can hold canonical power in the Church?
A: No, I would not say that's correct.
Q: Who holds canonical power besides the clerics?
A: Well for example, the Code of Canon Law mandates that every parish have a Parish Finance Council, mandates that every Diocese have an Archdiocesan or Diocesan Finance Council, and entrusts to those bodies certain rights and duties that the Bishop or the pastor must follow.
Q: Is it also correct to say under the canon law the greater the rank, the more reverence is owed a cleric?
A: No, I think it's the opposite. I think the more humble and holy the person, the more reverence people give.
Q: And I'm talking about the canon law now. Is it correct to say that, in effect, under the canon law the Bishop is the shepherd?
A: Yes, that's one of the terms used.
Q: Shepherd of the flock?
A: I'm sorry?
Q: Shepherd of the flock?
A: Shepherd of the flock, yes.
Q: Shepherd of the priests, too?
A: Yes, uh-huh, as Jesus said, “I am the good shepherd,” in the same way.
Q: And the priests are the shepherds of the community of faith, correct?
A: Yes, that's our normal understanding.
Q: Is it also correct under the canon law that clerics are obliged to be holier than the laity, they're required to be?
A: I don't think that is not my recollection that- all of us are called to holiness. All the disciples of Jesus are called to holiness. Obviously, we have special obligations, and we have to work at it like everybody else.
Q: Going back to these archival or confidential files, when you use these files or place materials in them or refer to them, did you call them the secret archives or the confidential files?
A: I'm, I'm sorry, I can’t remember. Those terms were used so interchangeably. And I had very little to do with them, as I don't really recall.
**********
Q: Okay. And under the 1917 code there’s a requirement- it's actually Canon 379- that says that [confidential files] are to be kept by the Bishop and his designee. Does that sound familiar?
A: No. It's a long time ago.
**************************Q: Okay. I just wanted- so we're talking about the same thing, so it's correct at least for our purposes to call it either the “secret archive,” as is used in the canon law, or the “confidential file’; would that be fair?
A: I think that would be fair, yes.
Q: Okay. And under the 1917 code there’s a requirement- it's actually Canon 379- that says that they are to be kept by the Bishop and his designee. Does that sound familiar?
A: No. It's a long time ago.
Q: Under the 1983 code, it's Canon 489 and 90 that says that it is the Bishop and his Designee that are to keep the confidential file. Does that sound familiar?
MS. McGUIRE: Objection. Relevance.
THE COURT: Overruled.
THE WITNESS: Well again, I don't have my Code of Canon Law with me, but I presume that's probably accurate.
MR. ANDERSON: Q: Okay. Is it fair to say that under the canons that priests have a number of protections and rights under the canon law?
A: I think in the Code of Canon Law it lays out both rights and responsibilities, rights and duties. And that is for everybody, lay people- the section on lay people, section on clerics, section on Bishops, etcetera.
Q: And during the times that you were a priest of the Diocese of Fresno, was there any policy written that pertained to the protection of children and sexual abuse?
A: No. In my days there was nothing in writing. In general there were no personnel policies of any kind actually dealing- but certainly not this issue.
Q: And it's fair to say, then, that the things that were written were in the canons, and you were guided in your actions by the canons, the canon law; correct?
A: Yes, that would be correct.
Q: And it's- is there anything in the canon laws that were written that pertain to the protection of children and what priests are obliged to do to protect children?
MS. McGUIRE: Objection. Vague.
THE COURT: Do you understand the question?
THE WITNESS: Yes I do, Your Honor.
THE COURT: All right, the objection’s overruled. Go right ahead.
THE WITNESS: No, there is nothing in the Code of Canon Law that I recall that speaks specifically about proactive protection of anybody, any group.
MR. ANDERSON: Q: Now, the canon law also provides that the Bishop has certain obligations pertaining to his priests and any suspicions of unfitness, correct?
A: Uh, yes, I think there’s some sections like that.
Q: Yeah, and if a Bishop suspects that a priest is unfit or doing harm to another, the Bishop has an obligation under the canon law to investigate that, correct?
A: Yes, the norm would be if there’s a charge made of some kind, that that would be fully investigated, yes.
Q: What is and while you were Fresno was the Bishop’s obligation when and if he received a report of a possible sexual crime to investigate?
A: Well, during my time here in the Diocese of Fresno, I can’t recall a case of anything-
Q: Excuse me, Bishop- Cardinal- I'm talking about under the canon law what was. I'm not talking about what was done. I want to direct- re-direct your question- or direct your attention to the question.
And it is during your time here, w
Was the Bishop’s obligation under canon law to investigate suspicions of sexual abuse?
MS. McGUIRE: Objection. Lacks foundation.
THE COURT: Overruled.
THE WITNESS: Well, as I just responded, the- the obligation would be to carry out an investigation of a charge.
MR. ANDERSON: Q: what did- what did that investigation mean under the canon law? What is the Bishop to do?
A: Well, again, it depends on what the allegation is, what the charge is. And- and-
Q: Let’s focus you on that.
MS. McGUIRE: Objection, Your Honor. He’s answering the question.
THE COURT: Had you finished your answer, Cardinal Mahony?
THE WITNESS: That's sufficient, yes.
THE COURT: All right. Go right ahead.
MR. ANDERSON: Q: Let’s focus on suspicion of sexual abuse, that is, a priest engaging in sexual abuse of a minor or soliciting a minor in the confessional.
MS. McGUIRE: Objection. Compound.
THE COURT: Sustained.
MR. ANDERSON: Q: Let’s focus on, Cardinal, on suspicions that a priest is suspected of abusing a minor. What was the obligation of the Bishop to investigate?
MS. McGUIRE: Objection. Vague as to time. I'm not sure the time.
THE COURT: I think you're referring to the time he was in Fresno?
MR. ANDERSON: Yes.
THE COURT: -correct? Overruled. You may answer the question.
MS. McGUIRE: Thank you.
**************
MR. ANDERSON: Q: Sure. When there was suspicions that a priest may be abusing a child, sexual abuse, what was the obligation of the Bishop to investigate?
A: Well, Your Honor, this is one of those situations where the- I think we need a broader context here….. There are two things here. One is what do the canon law say, and the other is what- how were these matters understood in earlier decades and how were they dealt with both in the church and in civil society?... So I'm trying to help people understand, especially in the jury, that there was an evolution of understanding…. So early on the- any kind of problem like this, from my recollection, was looked at as a spiritual failure…. So what I'm trying to say is, yes, the canon law said this, but how was this actually dealt with, understood in the general society.
Q: So if I'm hearing you correctly, Cardinal, you're saying that in the twenty years you were here, sexual abuse by a priest was treated by the Bishop as a spiritual problem; correct?
MS. McGUIRE: I'm going to object….
A: I don't recall any case while I was here of allegations of sexual abuse of a child by a priest. So I don't know how it might have been handled, because I never heard of it.
*****************************THE WITNESS: And so now I'm going to have to have you repeat the question. I got lost.
THE COURT: All right.
MR. ANDERSON: Q: Sure. When there was suspicions that a priest may be abusing a child, sexual abuse, what was the obligation of the Bishop to investigate?
A: Well, Your Honor, this is one of those situations where the- I think we need a broader context here.
THE COURT: If you don't understand the question, Mr. Anderson will rephrase it.
THE WITNESS: Yeah. See there-
MR. ANDERSON: Q: Do you not understand the question, Cardinal?
A: There are two things here. One is what do the canon law say, and the other is what- how were these matters understood in earlier decades and how were they dealt with both in the church and in civil society? And so there was no evolution that regardless of what the code might have said, things were handled in a different- in different ways. They evolved into today, which we have a very highly sophisticated system.
So I'm trying to help people understand, especially in the jury, that there was an evolution of understanding, like it was with alcoholism and other things. So early on the- any kind of problem like this, from my recollection, was looked at as a spiritual failure. It was a lack of really spiritual fortitude; and therefore, it was treated like a spiritual remedy. And that was kind of the way these things were dealt with, you know, drinking whatever it might be. And then eventually we became more aware that that really wasn’t accurate; that there was more to it. And then we also became aware that these issues and society too were changing, and that eventually these matters were handled in a much more realistic and sophisticated manner.
And so what I'm trying to say is, yes, the canon law said this, but how was this actually dealt with, understood in the general society.
Q: So if I'm hearing you correctly, Cardinal, you're saying that in the twenty years you were here, sexual abuse by a priest was treated by the Bishop as a spiritual problem; correct?
MS. McGUIRE: I'm going to object. It misstates the testimony and-
THE COURT: It's in the form of a question. Objection overruled.
MR. ANDERSON: Q: You may answer.
A: My point was, as I said, I don't recall any case while I was here of allegations of sexual abuse of a child by a priest. So I don't know how it might have been handled, because I never heard of it.
Q: In terms of your knowledge of the clerical culture and during the twenty years you were here, is it correct to say by what I heard you just say that the hierarchy and the clerics saw sexual abuse as more of a spiritual problem?
MS. McGUIRE: I'm going to object.
MR. ANDERSON: Q: - in that time frame?
MS. McGUIRE: Excuse me. Objection. Relevance. Lacks foundation.
THE COURT: Overruled.
THE WITNESS: No. You'll recall what I said was many problems during this period of time were understood differently. I didn't say that they actually occurred. I just said, in general, in society- alcoholism is another companion problem. It was not understood as the disease it is. We now know how to treat it, how to deal with it. And just- that's why many cases, these things were never reported to the church officials.
MR. ANDERSON: Q: And it's also why many times church officials didn't report it to civil authorities, correct?
MS. McGUIRE: Objection. Argumentative.
THE COURT: Overruled.
MS. McGUIRE: Lacks foundation. Speculation.
THE COURT: Overruled.
***************
MR. ANDERSON: Q: Cardinal, were you aware that it was a crime during the time you were here for a priest to engage in sex with a child.
A: Well, it's my understanding that it was a crime to have any kind of abuse of a child, neglect, physical abuse, psychological abuse, or sexual abuse.
Q: Well in fact-
A: By anybody, and not just priests.
Q: When you talk about your understanding, in fact, you have some training as a social worker, do you not?
A: Yes, I do….
Q: And you're familiar with mandatory reporting laws that require certain people to report suspicions of sexual abuse, are you not?
A: Well, see, that's a good example of how the- this has evolved. I was in social work school from 1962 to 1964. Never heard the term “sexual abuse of a child,” never heard of it.
*************************THE WITNESS: Well I don't- I can’t think of an example while I was here where civil authorities were not notified because I can’t recall a case when there was one of these allegations. So it's speculation as far as I see it.
MR. ANDERSON: Q: Cardinal, were you aware that it was a crime during the time you were here for a priest to engage in sex with a child.
A: Well, it's my understanding that it was a crime to have any kind of abuse of a child, neglect, physical abuse, psychological abuse, or sexual abuse.
Q: Well in fact-
A: By anybody, and not just priests.
Q: When you talk about your understanding, in fact, you have some training as a social worker, do you not?
A: Yes, I do.
Q: And training and education, do you not?
A: Yes.
Q: And you're familiar with mandatory reporting laws that require certain people to report suspicions of sexual abuse, are you not?
A: Well, see, that's a good example of how the- this has evolved. I was in social work school from 1962 to 1964. Never heard the term “sexual abuse of a child,” never heard of it. And we visited orphanages, and we had a lot of practice in social work preparation. Never heard of this. Never heard of it.
Mandatory reporting only started in this state sometime in the early 1980s. And after this awareness had grown- and then if you recall, it began with psychologists and psychiatrists, then other groups gradually added over the years. Teachers, youth- people working with youth. And it wasn’t actually- it didn't actually include clergy until January 1st, 1997. So over this period of time, as the awareness grew, also the group of mandated reporters, so that in California today there’s a very large group of mandated reporters.
Q: And one of your educators that worked for the Diocese in education were mandatory reporters?
A: I'm sorry, first part?
Q: When did you become aware educators were mandated as reporters, those that worked for the Diocese-
A: Well certainly-
Q: -in the schools?
A: Certainly after I left here, because teachers weren’t included ‘til sometime about mid-1980s, around in there somewhere.
Q: Did I hear you say, Cardinal, that while you were a priest here, including your years as chancellor, including your years as vicar general, including your years as Auxiliary Bishop, you never heard it said or suspected that a priest was abusing a child?
*****************
MR. ANDERSON: Q: Well, let me ask it. During the twenty-plus years or twenty or so years you were here, did you ever hear of a priest abusing a child?
MS. McGUIRE: I'm going to object again. Motion in limine.
THE COURT: Sustained.
MR. ANDERSON: Q: did you ever hear of Herdegen being suspected of abusing a child?
A: No.
******************************MS. McGUIRE: Objection. Relevance.
MR. ANDERSON: Q: Did you say that?
MS. McGUIRE: There’s a motion.
THE COURT: Sustained.
MR. ANDERSON: Q: Well, let me ask it. During the twenty-plus years or twenty or so years you were here, did you ever hear of a priest abusing a child?
MS. McGUIRE: I'm going to object again. Motion in limine.
THE COURT: Sustained.
MR. ANDERSON: Q: did you ever hear of Herdegen being suspected of abusing a child?
A: No.
MS. McGUIRE: Vague as to time.
MR. ANDERSON: Q: You were aware that we're here-
THE COURT: Are you withdrawing the last question and rephrasing it? Because I hadn’t ruled on the objection.
MR. ANDERSON: Oh, I'm sorry. Sorry, Your Honor.
THE COURT: But it will be sustained. You need to specify a time frame.
MR. ANDERSON: Oh, okay. Q: We're here because- and you're aware that this is a- actually two lawsuits against the Diocese of Fresno correct?
A: Yes, that's the reason.
Q: And you're aware that we're here because it is claimed in this lawsuit and in both of them that Monsignor Anthony Herdegen offended my client, George Santillan, and Mr. DeMarco’s client, Howard Santillan? Are you aware of that?
A: Yes, I'm aware of that.
Q: And you're also aware that at all times while Monsignor Herdegen was a priest of this Diocese, it was the obligation under canon law of the Bishop to supervise him, correct?
A: Yes.
******************
THE WITNESS: Well, there weren't any specific proactive things in place at that time because this [child sexual abuse] was not something that- that would come up. As I said, I don't recall any case whatsoever during the period of time, my eighteen years here.
MR. ANDERSON: Q: Well, you say it was something that would not come up. Do you mean by that something that would not get talked about?
A: No, I meant that it didn't come to my attention or other priests. I never heard another priest talk about this in social gatherings. I never- never heard it come up that a priest would have done this.
Q: If a Bishop heard such a- information, however, be it a rumor, report, or complaint, the Bishop had an obligation under canon law to investigate it, right?
A: Yes, but he would have had to have heard it from somebody.
********************************Q: What protocols were in place between 1960 and 1980 when you left this Diocese to protect the children from a priest, such as Monsignor Herdegen, abusing kids?
MS. McGUIRE: Objection, Vague, relevance.
THE COURT: Overruled.
THE WITNESS: Well, as I explained earlier, there weren't any specific proactive things in place at that time because this was not something that- that would come up. As I said, I don't recall any case whatsoever during the period of time, my eighteen years here.
MR. ANDERSON: Q: Well, you say it was something that would not come up. Do you mean by that something that would not get talked about?
A: No, I meant that it didn't come to my attention or other priests. I never heard another priest talk about this in social gatherings. I never- never heard it come up that a priest would have done this.
Q: If a Bishop heard such a- information, however, be it a rumor, report, or complaint, the Bishop had an obligation under canon law to investigate it, right?
A: Yes, but he would have had to have heard it from somebody.
Q: Well, once you hear it, the Bishop’s obligation- once a Bishop hears it, he has the obligation to check it out, right, to investigate it?
A: Yes, that's correct, uh-huh.
Q: And is it also true that a Bishop doesn't know if it's true unless he does investigate it; correct.
A: Uh, yes right.
Q: And a Bishop under canon law has many means to investigate suspicions of misconduct by a priest. He can do a number of things, correct?
A: Yes, that's correct.
**************
Q: But the Bishop has the power to place him on administrative leave on suspicion pending an investigation; correct?
A: Well, there has to be a well-founded suspicion, because otherwise someone who disagreed with the pastor could make up an allegation. So it had to be- had to have some basis to it first.
Q: Well, Cardinal, how can a Bishop know that it's well-founded unless an investigation is conducted?
MS. McGUIRE: Objection, argumentative.
**********************Q: And one of those things the Bishop is empowered to do under the canon law is to have one of his officials- the chancellor, the vicar general, the vicar for clergy, or any number of individuals- go out there and interview witnesses; correct?
A: Yes, interview people in the parish, others, yes.
Q: And the Bishop has the power under canon law to, on any suspicion, immediately place the priest suspected on administrative leave, correct?
A: If there’s well founded suspicion of some crime like that, yes.
Q: But the Bishop has the power to place him on administrative leave on suspicion pending an investigation; correct?
A: Well, there has to be a well-founded suspicion, because otherwise someone who disagreed with the pastor could make up an allegation. So it had to be- had to have some basis to it first.
Q: Well, Cardinal, how can a Bishop know that it's well-founded unless an investigation is conducted?
MS. McGUIRE: Objection, argumentative.
THE COURT: I didn't hear the objection.
THE COURT: Argumentative, I'm sorry.
THE COURT: Sustained.
MR. ANDERSON: Q: You said that it has to be a well-founded accusation, didn't you?
A: Yes.
Q: What is a well-founded accusation, Cardinal?
A: Well, you could find that out pretty quickly. For example, is there more than one person alleging this? Are there witnesses? Did parents hear someone say this? You can find that out within hours. I'm not talking about a long period of time. You can find out pretty quickly.
THE COURT: All right. WE'RE going to take our lunch break now, ladies and gentlemen. We’ll take lunch break today until 1:30 as usual. ….
THE COURT: The jurors have left. Anything we need to talk about?
MR. ANDERSON: I’d like to address the foundational issues that- pertaining to the Exhibits A-1 and 2 and C.
THE COURT: Okay. Go ahead. I’ll just make a comment. No one has shown me these files. I have no idea what's in the files. I have no idea whether- for example, in the “C” file, is there anything in the “C” file that relates to this case? There is?
MS. McGUIRE: But it's after- after Cardinal Mahony. That's the issue with foundation from Cardinal Mahony. There’s nothing in there prior to 1980.
THE COURT: Well, the first thing that has to happen is I have to see the file so I know what's in there.
MR. ANDERSON: That's- that's-
THE COURT: Are there other foundational issues that you wanted to address?
MR. ANDERSON: Your honor, we're handing you the “C” file and file A-1.
THE COURT: And I don't know that I have time to review them now, but what are the other foundational issues?
MR. ANDERSON: Well, let me just address the understanding that I-
THE COURT: Can everyone please have a seat. You can stand. Go ahead.
MR. ANDERSON: We addressed this early in the proceedings, Your Honor. And it was my belief, based on representation of counsel, that we didn't have objections on foundation that these were the files.
THE COURT: But they've asserted an objection based on foundation now.
MR. ANDERSON: Well-
MR. WATERS: Had we know that, we would have called-
THE COURT: Let Mr. Anderson do it. Go ahead.
MR. ANDERSON: If I had known that I was going to get that objection and that they were going to deviate from that understanding that had been reached at the start of this case, we would have called the custodian of this file. And it was only when the Cardinal took the stand and right before that they advised me of a change of position, Your Honor, on foundation only.
THE COURT: I appreciate that. And you certainly can call the custodian, I would think. Maybe- maybe the two of you should talk about this over the lunch hour, because if there was an understanding that foundation was going to be waived with respect to these documents and that's now not the case-
MS. McGUIRE: Your Honor , I- I never made that representation. In fact, the other day I brought up specifically my objections to documents in that file on- as a blanket objection, and the Court indicated that they wanted to take the documents as they came, not the whole file. That was my objection, was that there’s been no foundation for that. I- what I told them is that the authentication of the document, that is- they're authentic but not foundational. I never represented that I was going to waive any foundation.
THE COURT: So assume there’s no stipulation as to foundation.
MR. ANDERSON: =Okay, I’ll make that assumption. And let me just tell you what the intention was to do in terms of one file itself, because we discussed this. We're not going to admit the entire file. WE'RE going to admit the entire- and it was our intention and belief to admit the “C” file because it's very short. There’s- and most of the documents in it have already been doubled here. It was also our intention that when a document in Exhibit A-1 and 2 became probative or relevant to the inquiry, we would take that document, have it pre-marked, and admit it at that time. And specific objections pertaining to that document could be addressed, some of which are in evidence.
THE COURT: That's fine.
MR. ANDERSON: And that was the way we intended to do that. And so when I was laying foundation for the file here now, given the objection, it's not my intention to admit it. It was only my intention to admit it for purposes of foundation so that we could use it and pages in it when we felt necessary and offer it individually at that time.
THE COURT: Okay.
MR. DE MARCO: Your Honor?
THE COURT: Yes, Mr. DeMarco?
MR. DE MARCO: If I could suggest one alternative, I apologize. As to the foundational issues, my understanding, the custodian of the file is physically present at counsel table. Mr. Avila is the chancellor of the Diocese. He’s the one that had it in his possession.
THE COURT: But he hasn’t testified. He has to testify.
MR. DE MARCO: The suggestion I was going to offer is certain of those documents, which are- now this issue is being raised- are central to the examination of Cardinal Mahony. I believe the foundation laying with Mr. Avila can be done in a matter of minutes. Perhaps when we come back from break, Mr. Avila can take the stand, lay the foundation for the file, and then- subject to recall or whatever else, and then resume the testimony with Cardinal Mahony. But this was unexpected, Your Honor.
THE COURT: Anything else?
MS. McGUIRE: Well, I'm still going to have relevance objections. 352 objections to the file.
THE COURT: No, I understand that. And we may have to do it a document at a time, and Cardinal Mahony may have to be here for a week. I don't know. But that's the way- if there are objections, that's the way we have to do it.
MR. ANDERSON: When it comes to the documents that I was going to use with Cardinal Mahony, I gave those documents to counsel this morning. I got no objection, Your Honor. There’s five in number.
THE COURT: The foundation has to be laid on the record in front of the jury or in some cases outside of the jury’s presence. But in this case it hasn’t happened. And we don't have a stipulation. And so if we have to take the documents one at a time and deal with them, we will. That's the only way we can do it.
MR. ANDERSON: For foundation, then, I’ll ask leave of Court, given the fact they withdrew what we understood to be stipulation, to call Mr. Jessie Avila, the deacon that is here, that is the custodian of the file, just to lay the foundation for this file, so that we can then-
THE COURT: I'm still not sure the entire file comes in. Again, I-
MR. ANDERSON: I'm not going to offer the entire file for the jury, Your Honor. It's just for foundation so that we can take portions out of it during the trial and the examination of this witness so we can use it for the limited purpose of when it's probative and relevant.
THE COURT: Any comments with respect to that, quickly?
MS. McGUIRE: Well the issue I-
THE COURT: The request is that we take Mr. Avila out of order to lay a foundation, in other words, that we interrupt Cardinal Mahony’s testimony. Any comments?
MS. McGUIRE: I just need to talk to my client about what he can lay a foundation for, because I don't know about the confidential file, as it's the Bishop’s confidential file.
THE COURT: I didn't hear an objection to taking- to interrupting Cardinal Mahony’s testimony, so that will be granted. We'll put Mr. Avila on the stand at 1:30.
MR. ANDERSON: Thank you, Your Honor.
MR. WEAKLEY: Your Honor-
THE COURT: We'll be in recess.
MR. WEAKLEY: Your Honor, there’s one other brief thing.
THE COURT: What?
MR. WEAKLEY: Just to remind the Court, yesterday when the issue of Cardinal Mahony testifying came up, plaintiff’s counsel promised they would be very brief because we also have to do our examination. In fact, they wanted to bring him on at 1:30 and promised if we did that, that we’d have time to do our examination.
THE COURT: I recall.
MR. WEAKLEY: We asked him to come in earlier. Frankly, if we knew we were going to drag it out this long, we would have had him earlier still. We haven’t been able to do our examination. Plaintiffs have been going on for an hour and twenty minutes.
THE COURT: Well, we may not finish today. I'm not sure what I can do. I mean, I don't think I can shortcut or short-circuit anybody’s examination of Cardinal Mahony, can I?
MR. WEAKLEY: Well, I think there was a representation yesterday about how long they would spend, and it was going to be a brief time.
THE COURT: There was. There was.
MR. DE MARCO: And there was also-
THE COURT: There was a representation he would be on and off the stand today.
MR. ANDERSON: Your Honor, there was also representation made by counsel that there was not an objection to foundation.
THE COURT: I'm not going to get into that. There’s nothing on the record related- waiving the foundation for these documents, so it's not something that I can deal with. So at 1:30 we'll put Mr. Avila on the stand, unless there’s some other arrangement made with respect to the document. We're in recess.
(Thereupon the lunch recess was taken.)
MARCH 17, 2009- AFTERNOON SESSION
(Thereupon the following proceedings were held in the presence of the Court, Counsel, and Parties:)
THE COURT: All right. We'll be back on the record with counsel present. Are we ready for the jury?
MR. ANDERSON: Yes, Your Honor.
MS. McGUIRE: Yes, Your Honor.
THE COURT: Is Mr. Avila going to be on the stand or Cardinal Mahony.
MR. DE MARCO: I believe- Mr. Anderson’s call.
MR. ANDERSON: Your Honor, it will be Cardinal Mahony.
THE COURT: Okay.
(Thereupon the jury returned to the courtroom, and the following proceedings were had:)
THE COURT: All right, welcome back ladies and gentlemen. Please have a seat, everyone. We'll be back on the record with counsel and the jurors present. Cardinal Mahony is seated in the witness stand. And, Mr. Anderson, you may resume your examination.
MR. ANDERSON: Thank you, Your Honor.
ROGER MICHAEL MAHONY resumed the witness stand and testified further as follows:
CONTINUED CROSS EXAMINATION
BY MR. ANDERSON:
Q: Cardinal, we were talking about and actually you were talking about well-founded suspicions before we broke, correct?
A: Yes, that's right.
Q: And you were telling us, if I heard you correctly, that a Bishop does have an obligation to investigate well-founded suspicions of sexual abuse by a priest; correct?
A: Yes, I’d say well-founded accusations of any kind.
Q: But we're talking about sexual abuse here. You understand that?
A: Yes, yes I do.
Q: And the Bishop, does he not, has a number of resources available to him in Fresno between ’60 and ’80 to do that, to interview witnesses, to look at documents, to investigate; correct?
A: Uh-huh, yes, that's correct.
Q: And one of the tools a Bishop had available to him while you were priest, chancellor, vicar general, and Bishop in Fresno, if one were to suspect sexual abuse by a priest, was to go to the priest file and see if there was something in the priest file; correct?
A: Yeah, I think that would be one of the avenues.
Q: Okay. And that priest file was maintained in the chancery so you could go to the chancery and ask who was ever maintaining the file to have that file viewed; correct?
A: Yes, that would be accurate.
Q: This would be the Bishop’s investigator now. This would be probably the vicar general or the chancellor that would be investigating if there was a suspicion; correct?
A: Uh, yes, whoever was designated.
Q: Another resource they could have gone to if there was a suspicion was to the secret archival file, or the confidential file; correct?
A: Yes, that would have been another avenue.
Q: But in order for that investigator, the Bishop’s investigator, to go there, they would have to have gotten permission from the Bishop to see that file; correct?
A: Yes, I would say the Bishop or the Bishop’s delegate.
Q: Okay. Because that is confidential, for the Bishop’s eyes only and the Bishop’s delegate’s eyes only; correct?
A: Yes, that's correct.
Q: If somebody were to be investigating this suspicion or a suspicion of sexual abuse by a priest, they could also go and interview other priests who had worked with the priest who was the subject of the investigation?
A: Yes, that would be another avenue.
Q: They could also go and interview employees of the parishes and the Dioceses where the priest worked to see if they had any information; correct?
A: Yes, that would also be another avenue.
Q: They could also talk to laity, if any of their names were reflected in those files, to see if members of the laity know anything about this; correct?
A: Yes, that also would be very correct.
Q: And in these files, there’s a number of laity who- whose names appear commonly; correct?
A: I- I'm not sure, because I haven’t reviewed the file.
Q: Well, you've looked at a lot of priest files, haven’t you?
A: Yes.
Q: Yeah, so if somebody writes a letter and it goes into the priest’s file from the laity, their name’s in the letter that's kept in the file, correct?
A: Yes, that's correct.
**************
Q: In fact, the canon law of 1983 and of 1917 required the Bishop on suspicion to go to the priest first; correct?
A: As one part of the initial steps.
Q: And what were the other parts, then, after the initial step of confronting the priest?
THE WITNESS: Well, it depends on what- what the priest said, you know. If the priest said, “Yes, I did this,” then action would be taken. If the priest said, “I did not do it,” then the Bishop would be free to pursue other investigation.
MR. ANDERSON: What if the priest refused to answer the question put to him by his superior, the Bishop?
A: Well, if the priest refused to answer, I would- I would certainly have had an investigation further.
**********************************Q: And another way to investigate whether there is well-founded suspicions is for the Bishop himself to go to the priest and ask him point blank, Father, tell me about this. What did you do?
A: Of course the Bishop can call the priest in and ask him a variety of questions.
Q: In fact, the canon law of 1983 and of 1917 required the Bishop on suspicion to go to the priest first; correct?
A: As one part of the initial steps.
Q: And what were the other parts, then, after the initial step of confronting the priest?
MS. McGUIRE: Well, objection. Calls for speculation.
THE COURT: As provided for in the canon law?
MR. ANDERSON: Yes.
THE COURT: Overruled.
THE WITNESS: Well, it depends on what- what the priest said, you know. If the priest said, “Yes, I did this,” then action would be taken. If the priest said, “I did not do it,” then the Bishop would be free to pursue other investigation.
MR. ANDERSON: What if the priest refused to answer the question put to him by his superior, the Bishop?
A: Well, if the priest refused to answer, I would- I would certainly have had an investigation further.
Q: And that would be troublesome, too, wouldn't it have been?
A: Not necessarily. If he had a canon lawyer, canon lawyer might have advised him at this point you probably be best not to respond to the questions, until there was more evidence offered.
Q: Under canon law, Cardinal, does a priest suspected and being questioned by his Bishop have a right to remain silent in the civil law against self-incrimination?
A: Well, I can’t speak for civil law. But in canonical law, we have canonical procedures, and so the priest would have the ability to, with canonical counsel, to delay responding to certain questions.
Q: What if there’s no canonical counsel? They have to answer then, don't they?
A: Well, in the cases I've familiar with, we always make sure that the priest has canonical counsel.
Q: Okay. We're talking about ’60 and ’80 now. The priest, you told us this morning, is under obligation to obey his Bishop. And that is in all matters of life and faith; correct?
A: Yes, that's correct.
***************
Q: We're talking about the obligations of the priest to the Bishop. My question to you, Cardinal, is isn't a priest under an obligation to answer a question put to him by his Bishop under the promise of obedience when and if the Bishop asks him, Did you abuse this kid or any other kids.
A: And you're talking about 1962 to 1980; right?
Q: Yes.
A: As I say, I have no experience of that with this case or any other case in the Diocese of Fresno….
Q: And if you had a suspicion, you as a Bishop had the power to call that priest on the phone and say, “Come to the chancery, I need to speak to you”; correct?
A: Yes. But as I pointed out, it never happened.
******************************Q: And so if the Bishop says, I want you to tell me what you did to this kid or if you abused a kid, isn't that priest under a canonical obligation under the promise of obedience to obey that Bishop’s order?
A: Well, recall, Counsel, that I testified this morning that I never had a case like this during 1962 to 1980. So these are speculative questions.
Q: We're talking about the obligations of the priest to the Bishop. My question to you, Cardinal, is isn't a priest under an obligation to answer a question put to him by his Bishop under the promise of obedience when and if the Bishop asks him, Did you abuse this kid or any other kids.
A: And you're talking about 1962 to 1980; right?
Q: Yes.
A: As I say, I have no experience of that with this case or any other case in the Diocese of Fresno.
Q: Well, you have a lot of experience about the promise of obedience?
MS. McGUIRE: Objection, argumentative.
THE COURT: Sustained.
MR. ANDERSON: Q: You have- you told us a lot about the canon law because that is the law, the policies and the practices of the church, correct?
A: Well, actually, you told us a lot about canon law. I- I just answered yes or no.
Q: Well, during the period of time in which you were a priest of the Diocese of Fresno, the chancellor, the vicar general, and the Bishop, and you had a suspicion as Bishop that a priest may have abused a child- committed a canon crime and a civil crime; correct: That's a civil crime, correct?
A: Yes.
Q: Okay.
A: Yes.
Q: And you had a suspicion, you as a Bishop had the power to call that priest on the phone and say, “Come to the chancery, I need to speak to you”; correct?
A: Yes. But as I pointed out, it never happened.
Q: Okay. You as a Bishop also had the power, once the priest presents himself at your office in the chancery, to- to put the question to the priest and as a part of your investigation or the Bishop’s investigation ask him, did you abuse a kid or any others-
MS. McGUIRE: Objection. Speculation.
MR. ANDERSON: Correct?
MS. McGUIRE: Speculation. Lacks foundation.
THE COURT: Overruled.
MR. ANDERSON: Q: Is that correct, Cardinal?
A: Could you repeat that, please?
Q: Did the Bishop, either you or any other Bishop, during that time frame, have the power to ask the priest, did you abuse a kid?
A: Yes, if the circumstances were presented, of course.
***************
MR. ANDERSON: Q: Okay. And if the priest were to say, “I'm not answering that question, Bishop,” that would be a violation of his promise of obedience subject to canonical penalty; correct?
A: Well, I find it very difficult with these hypothetical situations when I said I never had a case of this during that eighteen years. So these are all hypothetical questions. Didn't happen.
**********************************Q: And that would be something that the Bishop was expected and obliged to do as a part of his investigation, correct?
A: Yes.
MS. McGUIRE: Objection.
THE WITNESS: When- when presented with that evidence.
MR. ANDERSON: Q: Okay. And if the priest were to say, “I'm not answering that question, Bishop,” that would be a violation of his promise of obedience subject to canonical penalty; correct?
A: Well, I find it very difficult with these hypothetical situations when I said I never had a case of this during that eighteen years. So these are all hypothetical questions. Didn't happen.
Q: Is it correct to say, however, that the Bishop had the power to ask questions?
A: Well of course.
Q: Okay.
A: Yes.
Q: Thank you. Is it also correct to say that the Bishop had the power to require the priest to answer the question if he didn't invoke his right to a canon lawyer?
A: I guess in a hypothetical case, yes.
Q: And is it also correct to say that the Bishop not only had the power to ask the question and the power to require the priest to answer it, but that if he answered it in a way that was vague, the Bishop had an obligation to do further investigation?
A: Again, it's hypothetical. I wasn’t in that circumstance.
Q: Well, let’s use a hypothetical- hypothetical. Between the years of 1960- and you were actually in Fresno as a deacon in ’60- ’58, 59, 60?
A: 1961.
Q: Okay ’61. Using bête 1960 and 1980, then, if a Bishop hypothetically asks the priest, “Did you abuse a kid?” and the priest answers vaguely, the Bishop under the canon law and what you know had an obligation to investigate further, correct?
A: I would think so, but what I guess I'm wondering is, why we have a hypothetical case when this trial, I think, is about a real case? And it would seem to me I can answer questions about the real case.
Q: You'll have a chance, Cardinal. But right now you have to answer the questions that I have to put to you, okay? Will you do that?
A: I've been answering the questions.
Q: The question, the question, Cardinal, that I would like you to answer, is in that hypothetical, the Bishop had the power if the priest was vague in his answer to investigate further, correct?
MS. McGUIRE: Going to object that it's speculation. Incomplete. Hypothetical.
THE COURT: Overruled.
THE WITNESS: Well, again, see, you use the word “vague.” What did the priest say? You know, that's what's difficult.
MR. ANDERSON: Q: Okay. The priest said in this hypothetical when the Bishop confronts him and the priest presents himself at the chancery, he says, “I'm not going to answer the question, Bishop.” What was the Bishop to have done then as part of his duty to investigate?
MS. McGUIRE: Objection. Speculation. Incomplete hypothetical.
THE COURT: Under the procedures that were in effect at the time, during that period of time that we've talked about?
MR. ANDERSON: Yes.
****************
Q: And Question is did the Bishop have an obligation to investigate further?
A: Well, if I were the Bishop and that had happened to me, I would absolutely…..
Q: In that instance what was the obligation of the Bishop?
MS. McGUIRE: Objection. Speculation. Incomplete hypothetical.
********************************THE COURT: With that understanding, the objection’s overruled.
MR. ANDERSON: Q: You may answer, Cardinal.
A: And so what is the hypothetical question again?
Q: The priest comes to the chancery on a phone call to the Bishop. The Bishop has reason to question the priest, and in questioning the priest, he asks him, “Did you abuse a kid or kids in the past while a priest?” The priest refuses to answer.
And Question is did the Bishop have an obligation to investigate further?
A: Well, if I were the Bishop and that had happened to me, I would absolutely.
Q: And in that same hypothetical, assume that the priest, when asked that very question, “Have you abused a kid or kids in the past, Father?” that the priest says, “I was indiscreet twenty years ago.” In that instance what was the obligation of the Bishop?
MS. McGUIRE: Objection. Speculation. Incomplete hypothetical.
THE COURT: You're referring to, again, under canon law and the procedures that prevailed during the time period we're talking about?
MR. ANDERSON: All these questions do, yes.
THE COURT: Overruled. You may answer the question.
THE WITNESS: I don't know what the word “Indiscreet” means. I mean, it could mean anything.
**********
Q: And when- in that same hypothetical, in the same time frame, a Bishop gets a call from a priest at 6:30 AM in the morning, and the priest tells him on the phone that a person is saying that the priest had abused him and other children. That call in itself would be a well-founded suspicion to inquire of the priest further; correct?
MS. McGUIRE: Objection. Vague. Speculation.
THE COURT: Do you understand the question, Cardinal Mahony?
THE WITNESS: No. I don't know who called who at 6:30 in the morning.
*******************MR. ANDERSON: Q: And it's the obligation of the Bishop, isn’t it, to ask the priest, what do you mean “indiscreet” isn't it?
A: I would have if I’d been the Bishop.
Q: And when- in that same hypothetical, in the same time frame, a Bishop gets a call from a priest at 6:30 AM in the morning, and the priest tells him on the phone that a person is saying that the priest had abused him and other children. That call in itself would be a well-founded suspicion to inquire of the priest further; correct?
MS. McGUIRE: Objection. Vague. Speculation.
THE COURT: Do you understand the question, Cardinal Mahony?
THE WITNESS: No. I don't know who called who at 6:30 in the morning.
MR. ANDERSON: Q: Okay. Assume-
A: We're still hypothetical?: we don't have any real case? This is hypothetical- hypothetical?
Q: Let’s do it this way, Cardinal. Assume the priest is Father Anthony Herdegen, a priest that you know to have been a priest of the Diocese, correct. Monsignor Anthony Herdegen; correct? Assume that, okay?
A: yes.
Q: You know him?
A: Yes.
Q: Know he’s a priest, right? Still is; right? Or maybe you don't know. I don't know. Do you know?
A: I don't.
Q: Okay. Assume further that at 6:30 AM on April 24th 1995, that's a Monday, Monsignor Herdegen called the Bishop at 6:30 AM and he said to the Bishop, a person in Wasco is saying that the priest had abused him and other children. Now assume that the priest calls the Bishop at 6:30 and tells the Bishop that.
My question to you, Cardinal, is that a well-founded suspicion in and of itself?
*************
Q: Cardinal, is that a well-founded suspicion.
MS. McGUIRE: Objection, asked and answered.
THE WITNESS: Overruled.
THE WITNESS: Well, if somebody called ma and said- now, this is Monsignor Herdegen claiming that he had abused a child?
MR. ANDERSON: Q: Let me clarify it for you.
************************A: Well, in this situation, I presume you have the Bishop that you could ask that question. I- that was not while I was here, so I- I know nothing about it. The Bishop is- is still here, I think, who took that phone call. I think he’s the one you should ask, because I don't know, I wasn’t here.
Q: Cardinal, is that a well-founded suspicion.
MS. McGUIRE: Objection, asked and answered.
THE COURT: Overruled.
THE WITNESS: Well, if somebody called ma and said- now, this is Monsignor Herdegen claiming that he had abused a child?
MR. ANDERSON: Q: Let me clarify it for you. It's six-thirty AM. Monsignor Herdegen places a call to his Bishop, Steinbock. He says to the Bishop, a person in Wasco is saying that Monsignor Herdegen had abused him and other children.
Now, you got that, Cardinal?
THE WITNESS: Yes.
Q: Okay. Is it correct that on that alone, that is a well-founded suspicion right there that triggers the Bishop’s duty to investigate?
A: If he called me, I would have said yes.
Q: Okay, assume further that in that phone call Monsignor Herdegen admitted he was “indiscreet some twenty years ago in Wasco.” Is that additional evidence that is well-founded, justifying investigation?
A: Well what I find difficult is both Monsignor Herdegen’s alive, Bishop Steinbock’s alive who had the conversation, and I'm just speculating about what they should or should not have done. I find that very-very awkward.
Q: Cardinal, you were- you're a member of the Catholic Conference of Bishops, correct, and you have been since you were first installed?
A: Yes, yes.
Q: And you were on the ad hoc committee for the protection of children that was formed under the stewardship of Bishop Kenny in 1992, were you not?
A: Yes, that's correct.
Q: And you formulated- you and among others- at that time I think you were Cardinal Archbishop, in 1992, were you not?
A: Yes, that's correct.
Q: And you and other Bishops and Archbishops and Cardinals across the country as a part of Bishop Henry’s committee formulated a number of principles about dealing with allegations of sexual abuse; correct?
A: Yes, yes.
Q: And you did that because it had come to your attention that there was some serious problems about sexual abuse and how it had been handled in the past, and you wanted to address it; correct?
A: That's right.
MR. ANDERSON: And if I may approach, Your Honor?
THE COURT: Yes.
****************
Q: Cardinal, you were- you're a member of the Catholic Conference of Bishops, correct, and you have been since you were first installed?
A: Yes, yes.
Q: And you were on the ad hoc committee for the protection of children that was formed under the stewardship of Bishop Kenny in 1992, were you not?
A: Yes, that's correct.
Q: And you formulated- you and among others- at that time I think you were Cardinal Archbishop, in 1992, were you not?
A: Yes, that's correct.
Q: And you and other Bishops and Archbishops and Cardinals across the country as a part of Bishop Henry’s committee formulated a number of principles about dealing with allegations of sexual abuse; correct?
A: Yes, yes.
********************************MR. ANDERSON: Q: Cardinal, I'm going to place before you what I've marked Exhibit 396 at the bottom right hand corner. And you can see that this actually comes from the Office of Media Relations, and it's on United States Catholic Conference of Bishops. At that time you were a member of the United States Conference of Bishops, correct?
A: Yes, I was.
Q: And that commission that we were just talking about on which you served and Bishop Kenny presided developed five principles to follow in dealing with accusations of sexual abuse, correct?
A: Yes, that's right.
Q: And these are the five principles?
A: Yes.
Q: Okay. And these principles and this committee on which you served and worked were developed because of your knowledge and your colleagues’ knowledge that this had been mishandled in the past; correct?
A: Yes.
***************
Q: And they had been made by Bishops across the country, and it needed to be dealt with comprehensively; correct?
A: Well I don't- I can’t say for all Bishops there were problems, but there were some problems in some places.
Q: Okay. IN fact, you were at the national Catholic Conference of Bishops in 1985 when a presentation was made to the entire conference, at least in the executive committee, by then Father Tom Doyle, by Father Peterson, and by Ray Mouton, addressing a crisis of pedophilia in the priesthood, were you not?
MS. McGUIRE: Objection. Relevance.
THE COURT: Overruled.
THE WITNESS: Yes, I was present for that presentation.
*****************************Q: Mistakes had been made that had hurt kids; right?
A: Yes.
Q: And they had been made by Bishops across the country, and it needed to be dealt with comprehensively; correct?
A: Well I don't- I can’t say for all Bishops there were problems, but there were some problems in some places.
Q: Okay. In fact, you were at the national Catholic Conference of Bishops in 1985 when a presentation was made to the entire conference, at least in the executive committee, by then Father Tom Doyle, by Father Peterson, and by Ray Mouton, addressing a crisis of pedophilia in the priesthood, were you not?
MS. McGUIRE: Objection. Relevance.
THE COURT: Overruled.
THE WITNESS: Yes, I was present for that presentation.
MR. ANDERSON: Q: And that was 1985, seven years before you developed the five principles, correct, before you?
A: No, many of us prior to 1992 took action and put in guidelines and procedures. We did in Los Angeles in 1987, five years before these came out.
Q: Okay, fair enough.
But the 1985 presentation I was just referring to given to the Bishops in executive session: Have you, pay attention to that for a moment. You were there. You heard it. And you are aware that Father Tom Doyle, among others, presented a report to the Bishops saying there is a crisis of pedophilia by priests that demands immediate attention, or words to that effect; correct?
A: Yes.
Q: Okay. AND then to get back to the exhibit before you, 397, it- this is seven years later, correct, 1992; correct?
A: Yes. But you say “and then,” as if nothing happened between 1985 and 1992. Huge amounts of things happened in the Church. I can only speak for Los Angeles, because that's where I was. We put into effect policies, procedures. We trained priests. We did everything we could long before 1992.
Q: Are you saying that the policies and procedures that you put in place that you just referred to adequately protected the children?
A: I think they- they were a great step forward and were built upon and continue to be refined where necessary, and I think they're extremely adequate.
Q: Are you suggesting that the policies that you just referred to that you put in place handled the problems in an adequate way?
MS. McGUIRE: Objection, relevance.
THE COURT: Sustained.
MR. ANDERSON: Q: Let’s go back to the document before you, Cardinal. It's 1992. Bishop Kenny and you and others are members of an ad hoc committee; correct?
A: Yes.
Q: And you developed five principles?
A: Yes.
Q: That exhibit is before you; correct?
A: Yes, that's correct.
Q: And the five principles are to follow, that is, all the Bishops in dealing with accusations of sexual abuse; correct?
A: Yes.
MR. ANDERSON: Your Honor, I'm going to offer 397.
MS. McGUIRE: Exhibit 396 or 397?
THE COURT: I think it's 396. Any objection?
MS. McGUIRE: No objection.
THE COURT: 396 will be received.
(Thereupon Plaintiffs’ Exhibit No. 396 was received in evidence.)
************
[Five principles developed in 1992 for all Bishops to follow}
**********************MR. WATERS: May we post it to the jury, Your Honor?
THE COURT: Yes.
MR. ANDERSON: Q: Cardinal, we're going to post on the board the document before you. And I’d like to ask you about these five principles that were developed in 1992. That was really a response to a continuing problem; correct?
A: Yes.
Q: And principle number one is, “Respond promptly to all allegations of sexual abuse where there is reasonable belief that abuse has occurred.”
Now when you and the Bishops in this committee use “reasonable belief,” is that pretty much the same as the words you used this morning when you said, “well-founded suspicions ?
A: Yes.
Q: Okay.
A: Yes.
Q: So we can use those terms interchangeably here for our discussion?
A: Yes.
Q: Okay. Let’s talk about number one, then. Would you agree that an admission by the priest that he had been indiscreet and that it had happened twenty years ago is a reasonable belief that abuse occurred- occurred that would trigger an investigation?
MS. McGUIRE: Objection. Vague. Asked and answered.
THE COURT: Overruled.
THE WITNESS: Well, as I said, if you’d come to me, I would have had an immediate investigation.
************
Q: I want to direct your attention to the “if it's supported by sufficient evidence, relieve the alleged offender promptly.” What does “promptly” mean?
A: “Promptly” means, in my estimation, right now.
Q: That's the safer thing to do, isn't it-
A: That's-
Q: -where there’s suspicion?
A: That's what I would do. That’s what I do….
Q: Okay. Let’s look at three. “Comply with the obligations of civil law as regards reporting of the incident and cooperating with the investigation.”
Under these principles it was app and, in fact, required to report it to civil law enforcement authorities, correct, the police?
A: Well, this particular one is written for the whole country, and it depends on- because all the civil laws varied on who was required to report and who was not required.
****************************** MR. ANDERSON: Q: Let’s look at number two. It states, “If such an allegation is supported by sufficient evidence, relieve the alleged offender promptly of his ministerial duties, and refer him for app medical evaluation and intervention.”
I want to direct your attention to the “if it's supported by sufficient evidence, relieve the alleged offender promptly.” What does “promptly” mean?
A: “Promptly” means, in my estimation, right now.
Q: That's the safer thing to do, isn't it-
A: That's-
Q: -where there’s suspicion?
A: That's what I would do. That’s what I do.
Q: And that's what the Bishops adopted as principles to be followed by all of the Bishops across the country in 1992, correct?
A: Yes, that's correct.
Q: And just so we're clear about canon law, the Bishop had the power to say to the priest that you're on administrative leave while I do an investigation to see if this is really true and whether or not we have to take further action; correct?
A: Yes, exactly.
Q: Okay.
A: And that's what I do.
Q: Okay. Let’s look at three. “Comply with the obligations of civil law as regards reporting of the incident and cooperating with the investigation.”
Under these principles it was app and, in fact, required to report it to civil law enforcement authorities, correct, the police?
A: Well, this particular one is written for the whole country, and it depends on- because all the civil laws varied on who was required to report and who was not required.
Q: Let’s bring it back to Fresno. When was it required to report here?
A: Again, clergy became mandated reporters in California, all clergy, all phases, on January 1, 1997, that is, we're required to. Up to that point, a number of other categories were already reporters, but clergy were not.
Q: Cardinal, number three- put that up there, please, Counsel, Mr. Waters. I mean- it doesn't say anything about if the law requires it. IT says under principle number three, “Comply with obligations of civil law as regards reporting the incident.”
Are you saying that under these principles as applied by you and to all the Bishops across the country, that they have to go and check the statues and see whether or not they're actually required to do that in order to adhere to this principle?
MS. McGUIRE: Objection, argumentative, the document speaks for itself.
THE COURT: Overruled.
THE WITNESS: Well, my understanding is that it says “comply with the obligations of civil law.” At that time 1992, in the state of California, no clergy were mandated reporters. Maybe they should have been, but they weren't.
MR. ANDERSON: Q: A lot of clergy were educators and, in fact, Bishops were in charge of the department of education of the Diocese here; correct?
MS. McGUIRE: Vague as to time.
THE COURT: Same time frame?
MR. ANDERSON: Yes.
THE COURT: Which time frame are we talking about?
MR. ANDERSON: Well, for the purposes of these-
THE COURT: This is 1992?
MR. ANDERSON: Yeah, for purposes of these principles, we're talking about 1992.
THE COURT: all right, overruled. You may answer the question.
THE WITNESS: Yes. Well, the fact that the schools are under the jurisdiction of the Bishop does not qualify the Bishop to be an educator under the Education Code of California. He’s not a licensed educator.
MR. ANDERSON: Q: Bishop, if you have some question about whether under principles the Bishop is a mandated reporter or not, don't you err on the side of the protection of the children and report it and leave it up to law enforcement?
MS. McGUIRE: Objection. Argumentative.
THE COURT: Overruled.
THE WITNESS: Well, in fact, that's what we do.
******************
MR. ANDERSON: Q: Would the Bishop- would it not be appropriate in 1992 for the Bishop- wouldn't it be appropriate in 1992 for the Bishop, if he has a suspicion, to just report it to law enforcement?
A: That's 17 years ago. Yes answering today. I don't think 1992 that- that everyone thought reporting was an essential next step. Today it is. It's an essential first step, actually.
**************************MR. ANDERSON: Q: Well, let’s go back to the principles. You were suggesting to me that it depended upon whether they had to report. Under these principles, are you now telling me that the Bishop should report and comply with the civil law and reporting of the incident and then cooperate with the investigation by civil authorities?
MS. McGUIRE: Objection, argumentative, asked and answered.
THE COURT: The argumentative objection is sustained.
MR. ANDERSON: Q: Would the Bishop- would it not be appropriate in 1992 for the Bishop- wouldn't it be appropriate in 1992 for the Bishop, if he has a suspicion, to just report it to law enforcement?
A: That's 17 years ago. Yes answering today. I don't think 1992 that- that everyone thought reporting was an essential next step. Today it is. It's an essential first step, actually.
Q: In 1992 what training did a Bishop have in the- in the detection and the discernment of sexual abuse of children or the investigation and the detection and discernment of sexual abuse?
MS. McGUIRE: Objection, Vague. Speculation.
THE COURT: Sustained.
MR. ANDERSON: Q: Let’s look at number four, Bishop- Cardinal, I'm sorry. It says, “Reach out to the victims and their families and communicate sincere commitment to their spiritual and emotional well-being.”
That's one of the principles that you adopted along with all the other Bishops, and Bishop Steinbock would have been one of them, correct?
A: Yes, that's correct.
Q: And this principle was adopted because, if there were well-founded suspicions of sexual abuse by a cleric, the Bishops have an obligation to those victims; correct/
A: Yes, that's right.
Q: And they have an obligation, as this principle says, to reach out to them; correct?
A: Yes, correct.
Q: And to reach out to their families, correct?
A: Yes.
Q: Because you and the other bishops knew that when sexual abuse by a cleric happens, it devastates the child as well as the family. You knew that, didn't you?
A: Yes, of course.
Q: And it says that you should then “communicate sincere commitment to their personal and emotional well-being.” Under these principles, what was a Bishop to have done when well-founded allegations of sexual abuse had occurred and you were applying these principles?
A: Again, my experience was, first of all, to try to find out who the victims are, find out where they live, find out what their age, their parents, and to offer them whatever counseling, spiritual, pastoral needs they might have.
Q: And number five states, “Within the confines of respect for privacy of the individuals involved”- and when you say “individuals involved,” the privacy, you're talking about the priest and the victims here?
A: I suspect this is everybody.
Q: Okay. IT states, “Within the confines of respect for privacy for individuals involved, deal as openly as possible with the members of the community.”
That means- what does that mean, Cardinal?
A: Well again, it would depend on the circumstances. But very often what we would do in Los Angeles is if this occurred in a parish, we would make an announcement in Sunday Mass that there has been a suspicion raised, and reach out and see if we can find other victims, because we know they need help.
Q: Doesn't it mean, in effect, tell the truth to the people that you have a suspicion, a well-founded suspicion, involving this priest? Let them know; isn't that what it says, in effect?
A: Actually it's more than a priest. It's the rest of the community. Because very often this is the way we find other victims.
Q: Excuse me. I may have misspoke. Doesn't it mean that the Bishop has an obligation under these principles to tell the truth to the community of faith about what you had learned, that there was a well-founded allegation against this priest, be it Herdegen or somebody else; correct?
A: Yes.
Q: In these principles was there any kind of loophole that would allow a Bishop in 1992 to say, well, if it's not public and the victim hasn’t come to me directly, even though the suspicion is well-founded, I don't have to tell the people? Were there any loopholes like that?
MS. McGUIRE: Objection, Vague.
THE COURT: Do you understand the question, Cardinal Mahony?
THE WITNESS: Maybe I could have it repeated.
THE COURT: Sure.
MR. ANDERSON: Sure. Q: When it comes to number five, for example, that is, tell the truth to the people, tell them that we've got a well-founded allegation against Father Monsignor X, is there any loopholes there, Cardinal, as you adopted these principles along with all the other Bishops across the country?
A: Well, see, these are just five very brief general principles. What most of us did is then develop very concrete policies and procedures so that while these are five or six lines, our policies by 1992 were probably thirty pages long and outline in great detail all the steps from the first time a report is made of what we do, what we do next, when we make announcements. It's all spelled out there in great detail. These, again, are just general principles. But it's- it's their translation. I have never seen, for example, the Fresno Diocese’s policies and procedures. I don't know what they say. I know what ours says, and they're very clear, step by step.
Q: When you take these principles and you assume the hypothetical that on April 24, 1995, the priest says to the Bishop, “I'm afraid of scandal,” after he’s told him he’s been indiscreet some twenty years ago in Wasco, with that, what does that mean to you, Cardinal, that he fears scandal?
MS. McGUIRE: Objection, Relevance, Speculation.
THE COURT: Sustained.
MR. ANDERSON: Q: Was fear of scandal in 1992 when you establishes these principles and- let me withdraw that question.
Let me ask you this; When you established these principles in 1992, Bishop, you- look at the right-hand corner of the exhibit. See, this is from the Office of Media Relations. That means that this was put out for dissemination to the entire public on the Catholic News Service, was it not?
A: Yes, that's correct.
Q: That means that these- these principles that the Bishops had adopted, and all of them, were sent out across- across the land for the public, the police, the parishioners, the faithful, to all hear and believe that you were dealing with this issue; correct/
A: Yes, and I think more than that, to help the Bishops make sure that they reviewed their own policies and procedures when they got back home from the meeting to make sure that their policies and procedures were following these principles.
Q: Assume that after the priest made the call at 6:30 and told him about being indiscreet and that there had been an accusation of abuse twenty years earlier and that he fears scandal, assume also that in 1995 the Bishop writes- or the priest writes, “Maybe should retire early, very quickly.” Would that have been an appropriate response to that information as I have put it to you?
MS. McGUIRE: Objection, incomplete hypothetical. Calls for speculation.
THE COURT: Under the procedures, canons that existed at the time?
MR. ANDERSON: And the application of-
THE COURT: Applicable to the Fresno Diocese?
MR. ANDERSON: Correct.
THE COURT: The objections are overruled. You can answer the question if you're able to, Cardinal Mahony.
THE WITNESS: Are you asking- were you positing a- you said a written- do you have a letter or something you're quoting from? I- for a while we've been in assumption, and now if we're in something written, that's a whole different situation.
MR. ANDERSON: Q: Okay. Cardinal, I'm going to show you, just to make it easier for both of us, what we've marked for identification as Exhibit C-1. And I’ll represent to you that this has been represented to us as a part of the secret or archival file of Monsignor Herdegen. A and it is our intention to introduce this document as it has already been shown to the jury later in this proceeding. But for purposes of our- our discussion, I'm going to refer you to it now; okay?
A: Yes.
************
MR. ANDERSON: Okay. Q: As you can see here, Tony called on the phone, 6:30 AM. You see that?
CARDINAL MAHONY: Where on this paper does it say who dictated or typed this?... I go back to my earlier concern. I was here 1962 to 1980. This happened in 1995. Bishop Steinbock is a few miles from here who wrote this and signed it. Wouldn't he be the one you should be asking the questions about the document?
Q: Cardinal-
AL You're asking me to speculate on his mind, what he was thinking at the time, and I have no idea what he was thinking at the time.
********************** Q: I will also represent to you that we will show later on in this trial that these are the notes of Bishop Steinbock pertaining to Monsignor Herdegen that came out of the “C” the confidential file. Understand?
A: Yes.
Q: Okay. You can see- may I put C-1 up, Your Honor?
MS. McGUIRE: Objection. Foundation.
THE COURT: Not until it's received.
MR. ANDERSON: Okay. Q: As you can see here, Tony called on the phone, 6:30 AM. You see that?
A: Where on this paper does it say who dictated or typed this?
Q: I'm representing to you that the signature on the right hand corner is that of Bishop Steinbock, that this is a memo that he made-
A: Okay.
Q: -to himself, and it was placed in the confidential file. You assume that because I'm going to establish that later in this trial, Cardinal okay? Do you understand?
A: Yes. But I go back to my earlier concern. I was here 1962 to 1980. This happened in 1995. Bishop Steinbock is a few miles from here who wrote this and signed it. Wouldn't he be the one you should be asking the questions about the document?
Q: Cardinal-
A: You're asking me to speculate on his mind, what he was thinking at the time, and I have no idea what he was thinking at the time.
Q: Cardinal, I'm going to ask you some questions about this document in 1995. You were one of the Bishops, as was Steinbock, who will be called later and who will be asked, I assure you, I assure you.
Now look at the document. You see that? You can assume that it is a memo by Bishop Steinbock in the secret file. Okay. Do you get that?
A: Yes.
Q: Thank you.
A: Yes.
Q: Assume that it's 6:30. Monsignor Herdegen called Bishop Steinbock and told him a person in Wasco was saying he abused him. Do you see that?
A: I see that.
Q: Also assume, as this document says, that abused him and other children. Do you see that, first line?
A: Yes.
Q: Then at the next note it says, “He admitted he was indiscreet some twenty years ago in Wasco but has not had anything happen like this in his life since.” Do you see that?
A: I see that.
Q: And then it says, “He fears scandal.” Do you see that.
A: I see that.
Q: When a priest says to a Bishop that he fears scandal, what does that mean?
MS. McGUIRE: Objection, speculation.
THE COURT: Sustained.
*************
Q: Then there’s an “if,” and look at that “if.” It says, “If someone makes an accusation against him, I will have to put him on administrative leave, have a psychologist evaluate him to see if there is any danger now in his life of abusing children, before returning him to ministry.”
Is that an appropriate “if” when you apply the principles adopted by you and others in 1992 that we already talked about?
******************* MR. ANDERSON: Q: Had you- the next line says, “Maybe he should retire early, very quickly.” Do you see that?
A: I see that.
Q: And then it says, “I told him to come to see me at noon today.” Do you see that?
A: I see that.
Q: I’ll represent to you the note said 11:30 AM. Represent the Bishop’s notes in his meeting with Monsignor Herdegen. Assume that, okay, Cardinal?
A: I see that.
Q: You'll see that the Bishop writes, “No knowledge has come to me about this from any other source.” Do you see that?
A: I see all the lines, yes.
Q: Then there’s an “if,” and look at that “if.” It says, “If someone makes an accusation against him, I will have to put him on administrative leave, have a psychologist evaluate him to see if there is any danger now in his life of abusing children, before returning him to ministry.”
Is that an appropriate “if” when you apply the principles adopted by you and others in 1992 that we already talked about?
MS. McGUIRE: Objection, speculation.
THE COURT: Sustained.
MR. ANDERSON: Q: in the next paragraph it says, “Action.” And would you agree, Cardinal, as a general principle that, you know, well, let me ask you this: This- this Exhibit 397, the Office of Media Relations is just- this is- this is words put together announcing the principles that you had adopted and wanted the Bishops to all follow; correct?
A: I'm sorry, but I don't have 397 in front of me.
Q: 396, excuse me. [TEARS] the press release about your five principles.
A: 396, yes, I have that.
Q: 396. I misspoke. Now you’d agree that those don't mean anything because they're words unless they're put into action; correct?
A: Yes. As I testified, these are put into policies and procedures that everybody knows and follows.
Q: Okay, Cardinal, you would agree that actions speak louder than words, would you not?
A: Yes, generally, yes.
Q: Let’s look back at Exhibit C-1 and see what action is recorded by Cardinal- excuse me, Bishop Steinbock. He states, “He will announce next Sunday, April 30th, that he will retire May 30,” that is, an immediate retirement. An announcement to the parish.
Is that an appropriate response given the principles that had been adopted in ’92?
: Well, in 1995, that is not what I would have done. That is not what the procedures of Los Angeles called for, and we would have handled it differently.
Q: The last sentence in that paragraph says- and you can real along with me- “He will write me a letter requesting retirement effective, one, because of his age and health reasons.” Age and health reasons.
Now is telling the community of faith that a priest that is retiring because of sexual abuse but telling the parish that it's for age and health reasons in compliance with these principles that you have adopted in ’92?
MS. McGUIRE: Well, objection. It misstates the evidence. It's an incomplete hypothetical. And it's speculation, calls for speculation.
THE COURT: Overruled.
THE WITNESS: Well, again, I can just speak to what I do, what I would have done. And this is not what I would have done.
THE COURT: All right, ladies and gentlemen, we'll take our afternoon break now. It's 2:30. We'll take a break until 2:45. Do remember the admonitions during the break, and we will see you at 2:45.
(Thereupon the jury retired from the courtroom and the following proceedings were held.)
THE COURT: For the record, the jurors have left. Counsel, we have a note from Ms. Chavez, Juror Number Four. I won’t read the whole note. The gist of it is her aunt passed away. The service is Thursday morning at 10:00 AM. She’s like to attend. I would normally grant that request. Is there any objection? Means we would not be in session Thursday morning.
MS. McGUIRE: No objection, Your Honor.
THE COURT: Is that going to interfere with your case tremendously?
MR. DE MARCO: No.
MR. ANDERSON: No.
MR. DE MARCO: That's fine, Your Honor.
THE COURT: I’ll let her know that she may attend the service, and we'll start at 1:30 on Thursday.
*************
MR. HENNIGAN: Your Honor?
THE COURT: Yes.
MR. HENNIGAN: I'm Michael Hannigan.
THE COURT: Hi, how are you?
MR. HENNIGAN: I'm representing Cardinal Mahony.
THE COURT: Yes.
MR. HENNIGAN: We, I think, had a deal with both sides that this would be Cardinal Mahony’s day. He could come as early as they like and he could stay as late as they like, but this is his day. And-
THE COURT: I'm not sure it's his day.
MR. HENNIGAN: He can’t be-
***********************************
MR. HENNIGAN: Your Honor?
THE COURT: Yes.
MR. HENNIGAN: I'm Michael Hannigan.
THE COURT: Hi, how are you?
MR. HENNIGAN: I'm representing Cardinal Mahony.
THE COURT: Yes.
MR. HENNIGAN: We, I think, had a deal with both sides that this would be Cardinal Mahony’s day. He could come as early as they like and he could stay as late as they like, but this is his day. And-
THE COURT: I'm not sure it's his day.
MR. HENNIGAN: He can’t be-
THE COURT: If he doesn't finish today, I'm not sure- how much more do you have?
MR. ANDERSON: Few questions.
THE COURT: Two questions?
MR. ANDERSON: A few.
THE COURT: A few?
MR. ANDERSON: Yeah.
THE COURT: Is that five minutes or rest of the day?
MR. ANDERSON: Three that are in my head at the moment.
MR. HENNIGAN: Okay.
THE COURT: Well, let me just find out. How much do you have?
MR. DE MARCO: I have maybe fifteen minutes of questioning.
THE COURT: That's right, I forgot about you. Ms. McGuire?
MS. McGUIRE: Thirty minutes.
THE COURT: How much?
MS. McGUIRE: Thirty minutes.
THE COURT: We can go a little late.
MS. McGUIRE: Can we go later today?
THE COURT: WE can go late. I have one matter at 3:30.
MR. HENNIGAN: WE can stay late. We just can’t be here tomorrow.
THE COURT: Hopefully that won’t be necessary, but if we don't finish today and he’s excused subject to recall, he will possibly have to come back. We'll try to avoid that, but can’t guarantee it. We'll do our best. Okay.
(Thereupon a recess was taken.)
THE COURT: Ready for the jury?
MR. ANDERSON: Yes.
THE COURT: Defense ready?
MS. McGUIRE: Yes. Yes, we're ready.
THE COURT: Okay, let’s bring them in.
(Thereupon the jury returned to the courtroom, and the following proceedings were had:)
THE COURT: All right. Welcome back, ladies and gentlemen. Please take a seat, everyone. We'll be back on the record with counsel and the jurors present. Cardinal Mahony is seated in the witness stand.
…
THE COURT: All right. Mr. Anderson, go right ahead with your examination.
MR. ANDERSON: Thank you, Your Honor.
(ROGER MICHAEL MAHONY resumed the witness stand and testified further as follows:)
MR. ANDERSON: No further questions.
THE COURT: Mr. DeMarco?
MR. DE MARCO: Thank you, Your Honor.
CROSS EXAMINATION BY MR. DE MARCO:
Q: Good afternoon again, Cardinal.
A: Hi, Tony.
Q: Cardinal, I wanted to ask you some questions, if you could, about St. John’s Parish in Wasco where the abuse in this case occurred. While you were assigned and part of the Fresno Diocese, you had occasion to visit that parish, didn't you?
A: Yes, I did.
Q: Can you describe some of the occasions when you would visit?
A: Well, it's a long time ago now, but I would have been there, excuse me, probably when I was Bishop Donohoe’s secretary. Probably drove him there for confirmation, and it may have been after I was an Auxiliary Bishop. I may have gone there for confirmation myself.
Q: Okay. You had an opportunity to go to the rectory as well?
A: Yes. I did.
*********
MR. DE MARCO: Q: Cardinal, did the Diocese of Fresno, while you were part of it, have rules regarding appropriate conduct in rectories?
A: I think there was a general understanding about private living space as opposed to the public space to meet people.
Q: And what were some of the understandings then that you were aware of regarding what would be appropriate in tee private living spaces?
A: Primarily a priest’s bedroom, bathroom, etcetera, were really off limits for people…. generally speaking, we just did not invite people into private space…. Back in those days, it was probably a little bit more open because nobody was thinking about harm taking place. I think as time has gone on, we've all become more sophisticated. I know our rules and regulations for a priest in rectories in Los Angeles are more stringent, very strict, and there’s no wiggle room.
Q: I'm sorry. So, Cardinal, in the 1960s while you were in the Diocese of Fresno, you're saying it was generally appropriate for a priest to have minors in his living quarters?
A: I knew a couple priests that had stamp collections or coin collections. They may have brought two or three youngsters in to see them who were interested in them…. Today that would never happen.
************************Q: Okay. Were you ever inside the living quarters portion of the rectory?
A: My recollection of the layout of the rectory is- is not that good because I haven’t been there since. But it seems to me that the front door opened onto some kind of a reception area, waiting room, something like that. But I was never myself in the living quarters.
Q: Cardinal, did the Diocese of Fresno, while you were part of it, have rules regarding appropriate conduct in rectories?
A: I think there was a general understanding about private living space as opposed to the public space to meet people.
Q: And what were some of the understandings then that you were aware of regarding what would be appropriate in tee private living spaces?
A: Primarily a priest’s bedroom, bathroom, etcetera, were really off limits for people. You would not invite people into that kind of area, and that was my experience. We just followed that very carefully.
Q: That would include adults, lay adults, in the community?
A: Well, it would depend. I mean, if somebody were coming to pick up something, maybe there were a box of candles outside the door, you might have somebody come pick them up. Those kinds of things would happen. But generally speaking, we just did not invite people into private space.
Q: Okay. And that would also then include children generally?
A: Absolutely.
Q: So from the earliest time in the Fresno Diocese, 1962, maybe even ’61, it would have been inappropriate for a priest to have minors or a minor alone with them for any appreciable length of time in their living quarters; would that be a correct statement?
A: Well I think I put it this way: As time has gone on, we have all become very-very much more vigilant and careful about having children, minors, anyplace with us. I know school teachers today say they no longer hug children. They have to be very careful about getting too close. So I would say back in those days, it was probably a little bit more open because nobody was thinking about harm taking place. I think as time has gone on, we've all become more sophisticated. I know our rules and regulations for a priest in rectories in Los Angeles are more stringent, very strict, and there’s no wiggle room and-
Q: I'm sorry. So, Cardinal, in the 1960s while you were in the Diocese of Fresno, you're saying it was generally appropriate for a priest to have minors in his living quarters?
A: No, I'm not saying that. I'm saying to have- for example, I knew a couple priests that had stamp collections or coin collections. They may have brought two or three youngsters in to see them who were interested in them, just as speculation of something that might have happened. Today that would never happen.
Q: Back in the 1960s, if a priest had brought a minor alone with him, one minor, into his living quarters for an appreciable length of time, would that have been appropriate?
A: I don't think so. And I would not have done it.
Q: Okay. And in fact, even back then that would have raised suspicions that there might be something of an nap relationship developing, correct?
MS. McGUIRE: objection, speculation, vague, incomplete hypothetical.
THE COURT: Sustained.
MR. DE MARCO: Q: Cardinal, did you ever have children alone with you in any of your living quarters?
A: Best of my recollection, no. And maybe when I was over at St. Genevieve’s over at the west side here, I might have had two or three nephews visit sometime.
Q: In terms of altar boys of the parish, did you ever have any altar boys visit with you in the private quarters of the rectory?
A: Never.
Q: Never had them come and watch TV with you in the den?
A: Never.
Q: That would have been inappropriate?
A: It just- yes.
Q: And you would have been concerned that it would raise the appearance that something illicit could be going on?
A: It just- it just wouldn't be appropriate. So I avoided it at all costs.
Q: You would agree, though, that even back then it would have been- that conduct of a priest having a minor alone with him for an appreciable length of time in his rectory living quarters, in your experience that would have been suspicious for abuse?
MS. McGUIRE: Objection, incomplete hypothetical. Speculation. Vague.
THE COURT: Overruled.
THE WITNESS: Well, I don't think back in the 1960s it would have been assumed that there’s something wrong going on, but it certainly would today. And it certainly was not advisable, and I would never do it and I would never advise anyone to have done it.
MR. DE MARCO: Q: Okay. So a- would it have been appropriate for, in your experience, a priest to be engaging in massages of altar boys in his rectory living quarters?
MS. McGUIRE: Objection- withdrawn.
THE COURT: The objection is withdrawn. You may answer the question.
THE WITNESS: I don't think priests should be giving anyone a massage, anywhere, period.
MR. DE MARCO: Q: That's true since you were even in the seminary?
A: I don't think in general, except maybe husband and wife, I don't think people-
MS. McGUIRE: Your Honor, I'm going to object as a motion in limine.
THE COURT: Overruled.
************
MR. DE MARCO: Q: Cardinal, would you think it suspicious for sexual abuse if a priest was routinely having minors on a weekly basis, more than a weekly basis, alone with him in his living quarters one at a time. Would that have been something that would have raised a red flag if you as a supervisor or priest at that time had been made aware of it?...
MS. McGUIRE: Objection, incomplete hypothetical
THE COURT: Overruled. You may answer the question.
THE WITNESS: Well, again, I told you I- I certainly would not have done it. I would not have counseled it, and I would not have approved it.
*********************************MR. DE MARCO: Q: Cardinal, would you think it suspicious for sexual abuse if a priest was routinely having minors on a weekly basis, more than a weekly basis, alone with him in his living quarters one at a time. Would that have been something that would have raised a red flag if you as a supervisor or priest at that time had been made aware of it?
MS. McGUIRE: Objection, incomplete hypothetical
THE COURT: And by “that time,” your referring to?
MR. DE MARCO: In the 1962 to 1980, Your Honor.
THE COURT: All right. The objection is overruled. You may answer the question.
THE WITNESS: Well, again, I told you I- I certainly would not have done it. I would not have counseled it, and I would not have approved it.
MR. DE MARCO: Q: Okay. So if you as a supervisor priest had found out about that kind of conduct, it would have raised in your mind the concern, wait a second, that kid may be- children might be at risk?
A: I would have definitely thought this was- this was beyond the normal boundaries of a priest in a parish and should not be done.
Q: And that understanding, as you're talking about the normal boundaries of a priest, this was pretty commonly understood in your experience in the diocese at the time, yes?
A: I would think so, yes.
Q: Most every priest knew these sorts of things in your experience?
A: Yes.
Q: Cardinal, were there something called diocesan statutes in Fresno?
A: Yes there were.
Q: What were they?
A: Well, diocesan statutes are a set of guidelines adopted by the Bishop to spell out some of the things in canon law in practice in that Diocese. A lot of it has to do with how to handle marriages, how to handle marriage cases, for example, setting times for confession, a number of things like that. And those statutes normally flow from a process called a Diocesan senate. And as far as I can recall, the last time there were statutes enacted in this Diocese, as far as I know, was 1929.
Q: Were you aware of any senate occurring since 1929 that superseded the 1929 statutes?
A: No, although what happened after the 1983 code took effect in 1985, many Dioceses did not have statutes anymore. They relied on the guidance of the new Code of Canon Law instead.
Q: Safe to say, though, in the 1960s throughout, then, in your experience, the 1929 statutes of the Diocese of Fresno were in full force and effect at that time?
A: Yes, they were in full force, but they weren't in print. And so it was very difficult for us to, even as seminarians, get copies of them.
Q: What do you mean weren't in print?:
A: This was published back in 1929-30 and given out to priests, and they over the years ran out. I mean all through the ‘30s and ‘40s, just ran out of them. Never had any more. Never had it reprinted. And because I know when we were in the seminary, the canon law professor asked us if we were aware of our statutes, and most of us said no. And so everybody tried to see if they could find a copy. We- I think we borrowed somebody’s for a short period of time, and that was it.
Q: When you were- when you were ordained to the Diocese of Fresno, though, and throughout the sixties, you had an awareness of what the statutes- what laws were in place?
A: Just vaguely. Many of them were, in a sense, a bit out of date. I know, for example, in the Los Angeles statutes it says you cannot purchase a new car that costs more than $500. Well, things change over the years. You've not buying much car for $500. So a lot of things were just never updated and just left.
Q: You were aware, were you not though, that there was a 1929 statute sill in force in the sixties that prohibited laypersons from being in the living quarters of a rectory?:
A: Yes.
Q: Throughout the sixties that was in full force and effect to your knowledge?
A: As far as I know, yes.
Q: Okay. Cardinal, the- if a priest of the Diocese, while you were there for the 1960s into the 1980s, had had a suspicion that another priest had sexually molested a child, would you have expected- you believe it was the practice of the Diocese that that priest was expected to report that to higher-ups?
A: Oh, yes.
***************
THE WITNESS: Well, again, keep- keep in mind that back in those years, there were no handbooks for lay employees, there were no- even handbooks for priest… There were no- there were no policies on this particular issue at that time….
A: Well, there were no- there were no policies on this particular issue at that time.
Q: So why would there be a difference in expectation between priests and lay employees?
A: Well, because I would expect if a priest had noticed something that was obviously a sign of trouble with a- a minor or a child, that he would report that to somebody in authority.
***************************Q: Okay. And if a lay employee in a parish or a diocesan office was- had similar suspicions that a priest of the Diocese had sexually molested a child, they would similarly have that obligation?
MS. McGUIRE: I'm going to object as vague and incomplete hypothetical.
THE COURT: Overruled.
THE WITNESS: Well, again, keep- keep in mind that back in those years, there were no handbooks for lay employees, there were no- even handbooks for priest. There were no procedures in place. So I suspect people like housekeepers would have no idea that there was any- any obligation to report to anyone in the church, because there- there was nothing in writing that would tell them that.
MR. DE MARCO: Q: No, you testified earlier there were no policies, though, written policies, for the priests either. Yet you would have expected that it would have been expected that they report?
A: Well, there were no- there were no policies on this particular issue at that time.
Q: So why would there be a difference in expectation between priests and lay employees?
A: Well, because I would expect if a priest had noticed something that was obviously a sign of trouble with a- a minor or a child, that he would report that to somebody in authority.
Q: Cardinal, you’d agree that even in the 1960s one of the most important missions of the church was the safety and wellbeing of children, wouldn't you?
A: Yes.
Q: And that would be not only of the ordained clerics but of the lay staff, wouldn't it?
A: Yes, yes.
Q: Including housekeepers?
A: Yes.
Q: So a housekeeper, just like a priest, should have been concerned for the safety of children, yes?
A: Oh yes, absolutely.
Q: So you would expect them, if they became suspicious that a priest was molesting a minor, to at least report it up the chain of command, yes?
MS. McGUIRE: Objection, incomplete hypothetical. Vague.
THE COURT: Overruled.
THE WITNESS: Well, I would suspect they’d tell somebody, tell somebody.
MR. DE MARCO: Q: Right. And in fact, as a supervisor of priests and lay employees, if you had found out that a housekeeper or a lay staff somewhere else had had suspicions and hadn’t reported, their job would be on the line, wouldn't it?
A: Well I should be very concerned, yes.
Q: You’d consider dismissing them, wouldn't you?
A: Possibly.
Q: If they weren't living up to this most fundamental purpose of the church, the safety and well being of children, you would want to discipline them or terminate them, no?
A: Yeah, well first of all, I wish they had- I’d ask them to tell somebody.
Q: Right.
A: Tell somebody.
Q: So if a parish housekeeper had witnessed minors routinely going into a rectory bedroom of a priest and was cleaning up the telltale signs of the abuse, it would be the expectation of the Diocese, in your experience, she had to report that up the chain, yes?
MS. McGUIRE: I'm going to object that it's an incomplete hypothetical and it's vague and it calls for speculation.
THE COURT: Overruled.
*************
MR. DE MARCO: Q: The housekeeper- assume the housekeeper is doing the laundry of sheets that are stained with semen after boys are routinely staying alone with Monsignor Herdegen in his living quarters…. there would be an expectation in this Diocese that she’d report that up the chain, yes?
A: Well, in a small town, most everybody knows everybody…. Again if- if anyone has knowledge that a child is in danger, physically, emotionally, anyone, any human being has to do something about it. You cannot just leave that alone.
Q: To hold otherwise would be to put children at risk?
A: Yes. And particularly a woman. I mean, women particularly with that wonderful motherly instinct.
**************************THE WITNESS: I'm not sure what you mean by the housekeeper found telltale- what you- I didn't understand that.
MR. DE MARCO: Q: Sure. The housekeeper- assume the housekeeper is doing the laundry of sheets that are stained with semen after boys are routinely staying alone with Monsignor Herdegen in his living quarters. So a housekeeper having those pieces of knowledge, there would be an expectation in this Diocese that she’d report that up the chain, yes?
A: Well, maybe she wouldn't up the chain, but she should sure tell somebody.
Q: Who? Who if not- who should she tell?
A: Well, in a small town, most everybody knows everybody in these little towns around the Valley. And there would be, I would think, a lot of people that she would tell. Because if there’s no other priest in the town, she may not feel it's her role to go to Fresno to report it. But she would tell somebody. If a housekeeper really felt a child was in danger, she’d have to do something. I mean, it's just instinctive.
Q: So you would not expect- as a supervisor of lay employees and clerics of this Diocese through the sixties, you would not have expected her to make any effort to contact the Diocese with those concerns?
A: I'm saying I would expect her immediately to contact somebody, immediately.
Q: And that would also include the Diocese, yes?
A: Well, certainly, and maybe a pastor, the dean in Bakersfield, possibly, someone.
Q: Someone who’s in a position to do something about it, yes?
A: Yes, yes.
Q: And this is from your experience as- this would be a matter of policy for the Diocese, wouldn't it?
A: Again if- if anyone has knowledge that a child is in danger, physically, emotionally, anyone, any human being has to do something about it. You cannot just leave that alone.
Q: It's common sense?
A: Yes.
Q: To hold otherwise would be to put children at risk?
A: Yes. And particularly a woman. I mean, women particularly with that wonderful motherly instinct, who have such a great nurturing, caring for children, of anybody that noticed something, they would have to tell somebody. They’d have to do something about it.
Q: Cardinal, do you- in your experience, I mean, you visited St. John’s in Wasco- I’ll withdraw that.
Cardinal, I know you outlined your experience and your education and such earlier, and I'm not going to go at length into it. But suffice to say, you yourself went to a minor seminary; correct?
A: Yes.
Q: And that's essentially a high school seminary?
A: Yes.
Q: Residential high school seminary?
A: NO, when I went it was a day school.
Q: Okay. And since that time, you have, in fact, supervised also or been Bishop over high school seminaries, yes?
A: Yes, that's correct.
A: So you have some- you have experience as to what would have been acceptable practices at high school seminaries, yes?
A: Well, again, they're different. I have experience over the one I was involved with and went to. Q: Okay. Has it been your experience that at high school seminaries and, frankly, throughout, there’s generally been a pretty strict line of physical separation between priests and minor seminarians?
MS. McGUIRE: I'm going to object as relevance and motion in limine.
THE COURT: Sustained.
MS. McGUIRE: Thank you.
************
MR. DE MARCO: Q: You're generally aware, are you not, Cardinal Mahony, of what acceptable practice of physical conduct between priests and minor seminarians would be, even in the 1950s, yes?
MS. McGUIRE: Objection, relevance, motion in limine.
THE COURT: Sustained....
Q: Now, Cardinal, the plaintiffs in this case, the evidence will show, were sexually abused in the rectory, but each of them was massaged using rubbing alcohol by Monsignor Herdegen. If you had heard as a supervisor of priests in the 1960s that Monsignor Herdegen was engaging in alcohol massages of minors, that would have raised a concern in your mind that he is sexually abusing those kids, wouldn't it?
A: Well it certainly would have upset me, probably outraged me, that he’d be massaging anybody with anything.
***************************MR. DE MARCO: Your Honor, may I approach on that briefly?
THE COURT: No.
MR. DE MARCO: Q: You're generally aware, are you not, Cardinal Mahony, of what acceptable practice of physical conduct between priests and minor seminarians would be, even in the 1950s, yes?
MS. McGUIRE: Objection, relevance, motion in limine.
THE COURT: Sustained.
MR. DE MARCO: Q: You mentioned earlier, Cardinal, that if a priest of the Diocese had a suspicion that children might be abused by a priest, that they had an obligation to report even back in the sixties. That would include rectors of a seminary, yes?
THE WITNESS: Certainly.
Q: Now, Cardinal, the plaintiffs in this case, the evidence will show, were sexually abused in the rectory, but each of them was massaged using rubbing alcohol by Monsignor Herdegen. If you had heard as a supervisor of priests in the 1960s that Monsignor Herdegen was engaging in alcohol massages of minors, that would have raised a concern in your mind that he is sexually abusing those kids, wouldn't it?
A: Well it certainly would have upset me, probably outraged me, that he’d be massaging anybody with anything.
*************
MR. DE MARCO: Q: So, Cardinal, you're saying that if you had heard in the 1960s as a supervisor of priests that Monsignor Herdegen was engaging in alcohol massages of- of children, of minors, that that would not have raised in your mind the suspicion that he is sexually molesting these kids?
A: You know, it's hard to go back after all these years…. Today there would be no question about it. But I'm just saying you go back forty, fifty years…
*****************************Q: But you’d be outraged and you’d be- that, in your mind, would say he’s sexually abusing these kids?
MS. McGUIRE: Objection, Vague, speculation.
THE COURT: Overruled.
MS. McGUIRE: Lacks foundation.
THE COURT: Overruled.
THE WITNESS: Well, it's certainly conduct totally incompatible with a priest.
MR. DE MARCO: Q: So, Cardinal, you're saying that if you had heard in the 1960s as a supervisor of priests that Monsignor Herdegen was engaging in alcohol massages of- of children, of minors, that that would not have raised in your mind the suspicion that he is sexually molesting these kids?
A: You know, it's hard to go back after all these years. But in those days that was- 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 you go back forty, fifty years, and that was not kind of the general understanding. Still totally inappropriate, regardless of what happened next.
Q: That would have caused an investigation, if nothing else? If you as a supervisor of priests had been made aware that Monsignor Herdegen was engaging in alcohol massages of minors, an investigation would have ensued?
A: Most likely, but that never happened during any of those years.
Q: Okay, Cardinal, I know we touched briefly also, Bishop has ultimate control as to whether or not a parish is open or closed, yes?
A: Not exactly. The establishment of a parish, the transition of a parish to a new configuration requires some steps involving the College of Consultors and other people.
Q: Even 1960s into the 1970s that was the case?
A: Yes, particularly.
Q: And the College of Consultors is appointed by the Bishop of the Diocese, yes?
A: Well, in those days, yes, not today.
Q: Okay. So the ultimate authority, though, back in the 1960s and ‘70s as to the opening and closing of a parish lied in the hands of the Bishop?
A: Yes.
Q: Okay. And that would go also for the employees of the parish; if the Bishop didn't want someone employed at a parish, the Bishop could have that person terminated, yes?
A: Well, I can’t think of a case like that, because the- the lay employees of the parish are hired by the pastor, supervised by the pastor, evaluated by the pastor. And I can’t imagine the Bishop stepping in to terminate somebody who’s not on the scene and evaluating that person.
Q: The pastor at the parish is the Bishop’s delegate at the parish, is he not? :
A: Yes, correct.
Q: He carries the authority of the Bishop to the parish?
A: Yes, but he by- by church law, canon law, has his own- own role in church law.
Q: But ultimately, if the Bishop wanted an employee terminated from a parish, you're telling me there’s nothing the Bishop could do to effect that?
A: Well, I can’t- I can’t imagine a case like it, so I'm having a hard time wrestling with it. I, I don't know how the Bishop would know how an employee was functioning in a parish if the Bishop isn't there.
Q: Well the Bishop does routinely visit the parishes as part of confirmations and other services, right?
A: Oh yes, but you're in the parish for, what two, three hours maybe total. You're there maybe in the evening, maybe on the weekend. You certainly don't see all the employees there.
Q: Okay. Cardinal, I’d like to show you a document. It's plaintiffs’ Exhibit 120. You have it in the original set.
THE COURT: Is this in evidence?
MR. DE MARCO: I will move it into evidence. I just wanted to put it-
THE COURT: It shouldn't be displayed.
Mr. WATERS: I apologize.
MR. DE MARCO: Q: Cardinal, do you recognize this document?
A: Yes, I do.
Q: It's a memo from you to Bishop Donohoe?
A: Correct.
Q: Okay. And you wrote this document?
A: I did.
MR. DE MARCO: Okay. I would- I would ask that the document be moved into evidence.
THE COURT: Any objection?
MS. McGUIRE: No Objection, Your Honor.
THE COURT: It will be received.
(Thereupon Plaintiffs’ Exhibit No. 120, Donohoe Memo, was received in evidence)
MR. DE MARCO: Okay. It can be displayed.
Q: Cardinal, the first line after “re” indicates “In your special folder on the possible pastor changes, you have all the necessary information about Monsignor Herdegen and his parish.”
What information was it that you included in this memorandum?
A: It was my recommendation that Bishop Donohoe was going to change a number of pastors around the Diocese and that Monsignor Doherty had prepared several pieces of papers on each of the parishes and each of the priests being considered by the Bishop.
Q: Okay. Do you recall what information you provided to Bishop Donohoe regarding Monsignor Herdegen?
A: No, I don't- I don't think I provided anything. It's the folder he had. It isn't a folder that I provided.
Q: Okay. Did you do any- any investigation at all regarding Monsignor Herdegen and- before giving him this memo, before giving Bishop Donohoe this memo?
A: No, I don't recall anything.
Q: Okay. Cardinal, little lower in the letter it mentions, “The only difficulty that must be discussed with Monsignor Herdegen is his willingness to have Monsignor Crowley in the rectory with him.” You see that?
A: I do, yes.
Q: Why would there have been a concern if you hadn’t done any investigation? Why would you be knowing to put that there’s a concern?
***********
A: So that was- I just wanted to make sure that Monsignor Crowley was clear about this and both of them were understanding that you’d have the former pastor living in the same rectory with the new pastor.
Q: So this had absolutely nothing to do with the fact that for the past eight years Monsignor Herdegen almost daily had boys in his rectory with him?
A: Absolutely nothing.
Q: Cardinal, there- withdrawn.
********************************
A: Well, the concern was Monsignor Crowley was a very well-known pastor in this Diocese. He and his brother served. Both priests of this Diocese were very well-known. Monsignor Herdegen was being considered to go to St. Anthony’s Parish in Atwater where Monsignor Crowley was the pastor. And I wanted to make sure t Monsignor Crowley, who wanted to reside in the rectory, that both he and Monsignor Herdegen were agreeable to that arrangement, that they- to have the- before that it was not that customary to have a retired pastor continue to live in the rectory.
Q: So this had- I'm sorry.
A: And so that was- I just wanted to make sure that Monsignor Crowley was clear about this and both of them were understanding that you’d have the former pastor living in the same rectory with the new pastor.
Q: So this had absolutely nothing to do with the fact that for the past eight years Monsignor Herdegen almost daily had boys in his rectory with him?
A: Absolutely nothing.
Q: Cardinal, there- withdrawn.
Cardinal, an administrator is not a pastor, is it?
A: No.
Q: Pastor under canon law has some pretty particular rights, as I think you just mentioned, regarding the conduct of the parish; correct?
A: Yes.
Q: And those rights don't attach to an administrator?
A: Most of them do, yes.
Q: Which ones don't?
A: Um, major decisions like purchase of property, building a new church, those kinds of things?
Q: One of those differences, isn't it, that a pastor is harder to remove from a parish than an administrator?
A: No.
Q: You can remove- in that time period, in the 1970s, early ‘70s, it was just as easy to move an administrator from a parish than a pastor?
A: It was easier to move an administrator, correct.
Q: Right.
A: Yes.
Q: So an administrator, when they're being moved to a parish, they've got less rights than a pastor- than they would as a pastor?
A: Well, maybe, yes and no. Sometimes yes, sometimes no.
Q: Cardinal, your understanding also of the diocesan statutes was they had some pretty strong recommendations for who could be hired as housekeeper at parishes?
A: You know, I’d have to be refreshed. I haven’t seen those in sixty years.
Q: And, Cardinal, when exactly did you cease having any role with the Fresno Diocese?
MS. McGUIRE: I'm sorry, I couldn't hear the question.
MR. DE MARCO: Cease having any role with the Fresno Diocese.
MS. McGUIRE: Thank you.
THE WITNESS: you mean- what do you mean by “any role”? Make sure I got the question correct.
MR. DE MARCO: Q: When were you no longer part of the Diocese?
A: When I was transferred and became the Bishop of Stockton, then my responsibilities were ceased.
Q: When was that?
A: In 1980.
Q: Do you remember when in 1980?
A: It was sometime in the spring of 1980. April, I believe.
Q: April. Did you have any continuing roles with the Diocese at least shortly after that?
A: No, I don't recall any- any role.
Q: Okay. So your awareness of Monsignor Herdegen pre-dates your leaving the Diocese?
A: Yes. Yes, in fact, I can’t remember when I saw him last when I left in 1980. It would have been some time before that.
Q: During your time in the Diocese, did you ever participate in having Monsignor Herdegen get counseling?
A: To get—
Q: Counseling.
A: No, not that I remember.
Q: He didn't get any counseling at the Vatican II Institute to your awareness?
A: No. The Vatican II Institute was not a place for counseling. It was theological updating, liturgical updating, following from the Second Vatican Council.
Q: Okay, Cardinal, one last thing to ask, and I think I want to pre-mark this as Plaintiffs’ Exhibit 398. Counsel, it's the statutes. Cardinal, I’d like to show you these statutes, if I could-
A: Yes.
Q: -and ask you if you recognize those?
A: I'm sorry- the question?
Q: And ask you if you recognize them?
A: I believe so, yes.
Q: What do you recognize them as?
A: That these were a- obviously a translation of the- of the statutes that were in Latin.
Q: Uh-huh.
A: And I think most of these came about as a project with a number of seminarians at St. John’s Seminary.
Q: Okay. When would that have been?
A: Not our class. It started maybe two or three classes ahead of us. And because the canon lawyers in our class would always ask us if we had a copy of the statutes and we didn't, and we- and so I think at least maybe three or four years before us a project started to begin to translate these into English.
Q: Do you recognize those as the diocesan statues of the Diocese of Fresno?
A: Yes.
Q: The ones we described that were promulgated in 1929?
A: Yes. But as Bishop Willinger made very clear to us, the only official ones were in Latin. These were unofficial for us, for our purposes.
Q: But these were the diocesan statutes that you understood the priests, the seminarians, were given?
A: Yes.
MR. DE MARCO: Okay. I would ask that the diocesan statutes be moved into evidence as Exhibit 398.
MS. McGUIRE: Your Honor, I’d just like to ask one foundational question.
THE COURT: All right.
MS. McGUIRE: Cardinal, have- has this translation, to your knowledge, ever been officially adopted by the Diocese as the official translation for purposes of governing the Diocese?
THE WITNESS: No. They were never adopted, never printed. These are copies from a typewriter, something. No, they were never published, never adopted, and as far as I know, other statutes were never adopted either.
MR. DE MARCO: Q: So these-
MS. McGUIRE: Then I would object.
THE COURT: Well the objection is sustained. Go ahead.
MR. DE MARCO: Q: To your knowledge, these statutes, then, were not given to parents of the Diocese, parents of children that were parishioners of the Fresno Diocese, these statutes weren't given to them, were they?
A: No-no. They weren't given to us as priests, so they weren't given to anybody, because they were out of print.
Q: But the priests were made aware of what the statutes said, yes?
A: Well, only in our case, because our canon lawyers ask us whether we knew what was in them, and we had to have- had no idea because we’d never seen one. So we were made aware of it, because we ourselves went through them ourselves.
Q: Uh-huh. So the Bishop didn't engage in any effort to your awareness to notify parents in this Diocese of children in the 1960s or later of the provisions of those statutes?
A: No-no, not at all. There was no official English and no efforts were made.
***************
DIRECT EXAMINATION BY MS. McGUIRE:
Q: I’ll be brief, Cardinal. When you talked about expectations of reporting, would you expect anybody who has a credible suspicion that a child is being sexually abused to report that?
A: I would, absolutely.
*******************************MR. DE MARCO: Thank you, Cardinal.
THE COURT: Ms. McGuire?
MS. McGUIRE: Thank you, Your Honor.
DIRECT EXAMINATION BY MS. McGUIRE:
Q: I’ll be brief, Cardinal. When you talked about expectations of reporting, would you expect anybody who has a credible suspicion that a child is being sexually abused to report that?
A: I would, absolutely.
Q: As a condition of employment, did a housekeeper hired by a parish priest to cook and clean as a condition of her employment between 1960 and 1979 have an obligation to report to the Diocese any credible suspicions of sexual abuse as a condition of her employment?
A: No, as I pointed out, in those years we had no- no handbooks for employees. All of those came later. We now do. WE have all those things and not only have them, but we have them online. So everybody has access to them and knows exactly what the rules are.
Q: And with regard to a housekeeper, would you expect if a parish priest hired a housekeeper part time that the parish priest would be the one that would impart- would impart to her what her job requirements were and what his expectations were with regard to cleaning and cooking?
A: Yes, and by part time, you mean not live-in housekeeper?
Q: No, not a live-in. Just coming in for a few hours a day.
A: I would expect the pastor to instruct in her duties.
Q: Now, in terms of- you talked about hiring housekeepers. Back in the sixties, was it an expectation that if a priest hired a housekeeper, she would be of good reputation?
A: Yes. Normally- I hired two or three housekeepers over at St. John’s- you would usually hire people who were retired or widows, grandmothers, people who’ve been around.
MS. McGUIRE: No further questions. Thank you, Cardinal.
THE COURT: Thank you.
Anything further, Mr. Anderson?
RECROSS EXAMINATION BY MR. ANDERSON:
Q: Was it your practice to usually make sure they were Catholic?
A: No. We had a lot of fine housekeepers who were not Catholics.
MR. ANDERSON: All I have.
THE COURT: Mr. De Marco? Anything further?
MR. DE MARCO: Nothing further, Your Honor.
THE COURT: May this witness be excused. I'm sorry. Ms. McGuire, did you have any follow-up to Mr. Anderson’s question?
MS. McGUIRE: I did not, Your Honor.
THE COURT: I assumed you didn't, but I should have asked.
MS. McGUIRE: I don't.
*************
THE COURT: All right, May this witness be excused?
MR. DE MARCO: Same reservation, Your Honor, thank you.
THE COURT: Very well. Thank you, Cardinal Mahony. You're excused subject to recall.
****************************MR. ANDERSON: Your Honor, subject to recall for foundational reasons.
THE COURT: All right.
MR. DE MARCO: Same reservation, Your Honor, thank you.
THE COURT: Very well. Thank you, Cardinal Mahony. You're excused subject to recall.
THE WITNESS: Thank you, Your Honor.
THE COURT: Ladies and gentlemen, that concludes the proceedings for today.
(Jury leaves room)
…
THE COURT: Just a couple of things. Mr. De Marco, from now on I'm going to take your estimates and triple them. I think you said fifteen minutes, and I counted forty-five.
MR. DE MARCO: And I'm sorry, Your Honor, certainly wasn’t intentional.
THE COURT: The other thing is a little more serious. And I know you mentioned in opening that this is your first trial. But you have a habit of reacting facially to my rulings, which you should try to avoid doing.
MR. DE MARCO: I will do so, Your Honor, thank you.
…
(Thereupon the proceedings concluded.)
HERE ARE SOME INTERESTING SECTIONS FROM COURT PROCEEDINGS BEFORE MAHONY TOOK THE STAND:
Regarding the reading of deposition of George Santillan, regarding an early conversation with Monsignor Herdegen:
*************
A: “What do you mean consideration? I didn't know we were talking about money. “Well that's usually what people want is money so-“
THE COURT: What is the relevance of this statement?
MR. DE MARCO: I mean, I think in context, it just shows this guy’s level of evasion and his admission. I mean, why would he be offering money to George in this context unless he’s admitting that, yes, I’ve abused you?
THE COURT: Well I haven’t read the transcript, but my understanding from our discussion yesterday was that he expressly admitted in more than one place that he committed at least some of the acts. MR. DE MARCO: You'll see and hear, Your Honor, most of this- there’s only a few places where it's objected to- he denies, denies, denies, finally admits, admits, denies, admits. So he’s not consistent.
********************************MR. WEAKLEY: At the bottom, Santillan starts out and says, “You know, I don't understand you. You didn't do nothing and stuff, but you want to give me some money for what?” And says, Herdegen, “I don't know, people usually ask for money.” Santillan: “We do?” Herdegen: “Uh-huh.” I'm going to object under 352 and motion in limine that there’s an inference there that there’s some other lawsuits going on.
THE COURT: What? That what?
MR. WEAKLEY: Other lawsuits or other claims against Herdegen. I think, frankly, it's subject to a variety of interpretations, but certainly one of them is there may be other claims that Herdegen has.
THE COURT: Because he says people usually ask for money?
Mr. WEAKLEY: Yes.
MR. DE MARCO: You know, if you read into the couple of exchanges above it, this is Herdegen bringing the subject up. This isn’t plaintiff. And it isn’t “I want to settle your lawsuit” or “I've settled other claims.” It's just, you know, “I’ll give you consideration. I’ll give you a letter of recommendation. Is there anything you’d like, George?”
“What do you mean consideration? I didn't know we were talking about money. “Well that's usually what people want is money so-“
THE COURT: What is the relevance of this statement?
*************
THE COURT: What does he admit?
MR. DE MARCO: He admits to at least one instance of masturbating George, though I think impliedly he admits to many-many instances of masturbating George….
THE COURT: And you think this constitutes an admission?
MR. DE MARCO: I think it's an inference. Why would he be offering to pay George money? And George even asked him, Why would you be offering to pay me money for something you didn't do? …
THE COURT: And I suppose this could be read to infer that there were other victims.
*********************************MR. DE MARCO: I mean, I think in context, it just shows this guy’s level of evasion and his admission. I mean, why would he be offering money to George in this context unless he’s admitting that, yes, I’ve abused you?
THE COURT: Well I haven’t read the transcript, but my understanding from our discussion yesterday was that he expressly admitted in more than one place that he committed at least some of the acts.
MR. DE MARCO: You'll see and hear, Your Honor, most of this- there’s only a few places where it's objected to- he denies, denies, denies, finally admits, admits, denies, admits. So he’s not consistent.
THE COURT: What does he admit?
MR. DE MARCO: He admits to at least one instance of masturbating George, though I think impliedly he admits to many-many instances of masturbating George. Then he says, “no-no-no in consciousness, I can’t say that.” So he’s inconsistent. So every time he’s saying something that he’s saying yes, he’s admitting to the abuse in an important admission. And I don't-
THE COURT: And you think this constitutes an admission?
MR. DE MARCO: I think it's an inference. Why would he be offering to pay George money? And George even asked him, Why would you be offering to pay me money for something you didn't do?
…
THE COURT: I'm going to grant the motion to exclude that portion under 352. It doesn't really add anything because the offer of money is made above and that- there’s no request that that be excluded. And I suppose this could be read to infer that there were other victims.
…
ANOTHER EXCERPT FROM TRIAL BEFORE MAHONY TESTIFIED:
THE COURT: With the attorney-client privilege, the attorney is not a holder of the privilege and can’t assert it if the client decides to waive it. In this case, both the clergy, the religious organization, and the confessor, Monsignor Herdegen, are holders of the privilege. And so if one waives it, the other one can still claim it.
******
END OF TRANSCRIPT
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