Why Mahony Has To Testify: Even though he wasn't cardinal during some of the criminal activity -- from the attorney who authored the subpoena

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By Kay Ebeling
aka City of Angels Lady

Some blogs and even the Los Angeles Times have shown confusion as to why Cardinal Mahony has to testify in the Kreutzer Cases jury trial. Those incidents took place in the 1970s and Mahony didn't become Archbishop of Los Angeles until 1985.

Steven Brady, San Francisco attorney, issued the subpoena because Mahony signed as author, The Report to the People of God, February 17, 2004, even posted it on the archdiocese website. He outlined how the church handled reports of pedophilia in the priesthood in the previous decades.

“Plaintiff has subpoenaed the person whose signature appears on the document, Cardinal Roger Mahony, with notice to produce the original of the document,” writes Brady in his opposition to Defendant’s Motion to Quash Subpoena. “The document details not only the current Church policy regarding the handling of alleged pedophiles, it also states the historical policy of the Church regarding same and covers the period of time relevant to the instant case. Aside from authenticating this document, this witness who is the head of the defendant corporation sole can testify as to information and sources of information in that document.”

Mahony Can Testify As To "Motive, Plan, and Knowledge"

Paul Kreutzer, a pedophile on the loose at one elementary school in one LA parish, was hardly the only predator turned loose on Southern California in the last decades preying on children as Catholic priests. Brady wants Mahony’s testify so the cardinal can explain the church’s policies:

“In the present case, the abuse of plaintiff by Paul Kreutzer was only one instance out of many, some occurring earlier and some later, in which the defendant hushed up accusations of sexual misconduct and allowed the perpetrator to continue his predations in order to avoid embarrassment to itself,” writes Brady. “The Report shows both the existence of the motive and plan, knowledge of the various occurrences and an absence of mistake or accident regarding Church policy of burying complaints of molestation.”

Conduct of Defendant and Its Agents Made It Possible for a Monster Like Kreutzer to Prey

“In the present case, showing only the conduct of Paul Kreutzer and the actions of Sister Catherine grossly understates the culpability of defendant,” Brady writes. “The very thing that made it possible for a monster like Kreutzer to prey on children at Our Lady of Peace was the conduct of defendant and its agents toward other priests and lay employees who were accused of similar misconduct.


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Brady's Pursuit of Mahony, continued. . .

"Accordingly, this evidence is highly relevant, has a great effect on the issues, and any emotional reaction it may arouse is due solely to the outrageousness of defendant’s conduct.”

It’s Not Like Mahony Was Asleep Until the 1980s. . .

“Mahony became bishop only nine years later.”

“Defendant makes much of the fact that Cardinal Mahony was in Northern California when Kreutzer abused plaintiff,” Brady writes. “What defendant does not mention is that Cardinal Mahony became Archbishop of Los Angeles only nine years after this abuse occurred, when many of the participants were still alive. It is apparent from the language of the report itself that Cardinal Mahony, as the sole signatory to the report, was familiar with the system of dealing with perpetrators and victims as it existed in the 1970's.”

Even John & Ken on KFI were questioning why Mahony would have to testify about older cases on this afternoon drive-time talk radio. The LA Times got it totally wrong. So as soon as I got a copy of Brady’s document filed May 30, 2007, I wanted to share it with readers of this blog.

(The document was not on the public access screens, by the way. It was there May 30, I saw the title, but the sun was out. . . . When I came back June 6 the document was gone from the network in Room 106.)

Here it is in its entirety:

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO QUASH SUBPOENA

I. INTRODUCTION

On February 17, 2004, the "Archdiocese of Los Angeles, Office of the Archbishop" issued a report summarizing the incidents of child molestation committed by Roman Catholic priests and lay employees during the previous 74 years and the manner in which the Church officials had reacted to these incidents. This document was signed by Cardinal Roger Mahony, Archbishop of Los Angeles, and was thereafter posted on the official web page of the Archdiocese.
Plaintiff believes that the document is self-authenticating because it has been posted on the defendant’s own archdiocese web page. Partly in response to defendant’s Motion In Limine to exclude the records, plaintiff has subpoenaed the person whose signature appears on the document, Cardinal Roger Mahony, with notice to produce the original of the document. The document details not only the current Church policy regarding the handling of alleged pedophiles, it also states the historical policy of the Church regarding same and covers the period of time relevant to the instant case. Aside from authenticating this document, this witness who is the head of the defendant corporation sole can testify as to information and sources of information in that document.
Irrespective of the Report to the People of God itself, it is apparent from the document that he was involved with the investigation into the actions of the Church at the time when the abuse occurred in this case. Further, defense counsel has stated that the Cardinal would need to be present for other reasons during this trial. Defendant has now moved to quash the subpoena on the ground that neither Cardinal Mahony’s testimony nor the report can be relevant evidence on any issue at trial. Defendant’s view of this case seems to be that the single issue of any relevance is whether Paul Kreutzer molested Cheryl Buser. If defendant will stipulate to such issues such as notice, course of conduct, the policy of the Church regarding the handling of alleged molestation and the like, then perhaps the case can be simplified and Cardinal Mahony’s testimony dispensed with. However, defendant has not done so and therefore the report and Cardinal Mahony’s testimony are both very relevant and essential to proving the plaintiff’s case.

II. THE REPORT TO THE PEOPLE OF GOD IS RELEVANT AND ADMISSIBLE

Evidence Code section 210 defines "relevant evidence" as follows:

"Relevant evidence" means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.
Defendant contends that because plaintiff’s case requires proof of abuse by Paul Kreutzer while he was employed by the Archdiocese at Our Lady of Peace, evidence regarding any other abuse is irrelevant. Defendant’s view of relevance is overly restrictive.
Defendant is being charged with intentional misconduct in concealing the wrongdoing of Paul Kreutzer from plaintiff’s parents and from law enforcement officers. Under Evidence Code section 1101(b), evidence of defendant’s conduct regarding other accused priests and lay employees is admissible to show "that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident." Such evidence is also relevant to show conscious disregard under Civil Code section 3294(b). See Weeks v. Baker & McKenzie (1998) 63 Cal.App.4th 1128, 1159 [74 Cal.Rptr.2d 510].
Additionally, Evidence Code section 1105 provides that "otherwise admissible evidence of habit or custom is admissible to prove conduct on a specific occasion in conformity with the habit or custom." Evidence regarding the manner in which defendant handled other complaints of abuse is therefore relevant to show that it handled plaintiff Cheryl Buser’s complaints in the same fashion. Specifically, defendant’s habit and custom of concealing evidence of sexual misconduct by priests and lay teachers in other cases, including defendant’s efforts to compel victims to recant, is admissible to show its conduct toward plaintiff in conformity with this institutional habit and custom.
In the present case, the abuse of plaintiff by Paul Kreutzer was only one instance out of many, some occurring earlier and some later, in which the defendant hushed up accusations of sexual misconduct and allowed the perpetrator to continue his predations in order to avoid embarrassment to itself. The Report shows both the existence of the motive and plan, knowledge of the various occurrences and an absence of mistake or accident regarding Church policy of burying complaints of molestation. It further shows a habit and custom of defendant in its manner of dealing with such incidents. Moreover, it shows the conscious disregard by defendant for the harm it was doing to plaintiff and others like her. The Report is thus directly relevant to both liability and damages issues in tis case.
Defendant, somewhat understandably, also seeks to exclude evidence of its admission under Evidence Code section 352 on the ground that it would be prejudicial. The evidence excludable under section 352, however, is that "which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues." See People v. Rucker (2005) 126 Cal.App.4th 1107, 1119-1120 [25 Cal.Rptr.3d 62]. Defendant cannot claim prejudice merely because the evidence is damaging defendant’s case. Id.
In the present case, showing only the conduct of Paul Kreutzer and the actions of Sister Catherine grossly understates the culpability of defendant. The very thing that made it possible for a monster like Kreutzer to prey on children at Our Lady of Peace was the conduct of defendant and its agents toward other priests and lay employees who were accused of similar misconduct. Accordingly, this evidence is highly relevant, has a great effect on the issues, and any emotional reaction it may arouse is due solely to the outrageousness of defendant’s conduct.
Defendant’s contention that undue consumption of time would occur is also overblown. The evidence which needs to be introduced is the report itself(and possibly some explanation of the terms used in the document), and not testimony from every perpetrator and every victim. Introduction of the Report and Cardinal Mahony’s testimony will serve the interests of judicial economy and will assist the jury.
III. THE TESTIMONY OF CARDINAL MAHONEY IS RELEVANT AND ADMISSIBLE
Even aside from the authentication of the Report to the People of God, Cardinal Mahony’s testimony is highly relevant. Defendant makes much of the fact that Cardinal Mahony was in Northern California when Kreutzer abused plaintiff. What defendant does not mention is that Cardinal Mahony became Archbishop of Los Angeles only nine years after this abuse occurred, when many of the participants were still alive. It is apparent from the language of the report itself that Cardinal Mahony, as the sole signatory to the report, was familiar with the system of dealing with perpetrators and victims as it existed in the 1970's.1
The point which defendant seems to ignore is that Cardinal Mahony is in a position analogous to that of the president of an ordinary domestic corporation, and the president of a corporation has always been an entirely proper witness to call regarding corporate practices. See, e.g., Tulare Irr. Dist. v. Lindsay-Strathmore Irr. Dist. (1935) 3 Cal.2d 489, 551 [45 P.2d 972] (corporation president testifying as to irrigation practices). Cardinal Mahony does not receive a free pass merely because his corporation is a religious corporation sole; indeed, this fact would seem to indicate that his knowledge of corporate practices should be even more extensive than that of a normal chief executive officer. Cf. Simmons v. Ratterree Land Co. (1932) 217 Cal. 201, 208-209 [17 P.2d 727] in which the Court found incredible that a vice-president could be unaware of fraudulent activities by corporate sales agents.
Defendant’s professed discomfort at the thought of testimony by Cardinal Mahony and its urging of Evidence Code section 352 as a basis for excluding this evidence is absurd. The evidence excludable under section 352 is that "which uniquely tends to evoke an emotional bias against defendant as an individual and which has very little effect on the issues." See People v. Rucker (2005) 126 Cal.App.4th 1107, 1119-1120 [25 Cal.Rptr.3d 62]. Defendant cannot claim prejudice merely because the evidence which may be obtained through the cross-examination of Cardinal Mahony is damaging defendant’s case. Id.
IV. CONCLUSION
Both the testimony of Cardinal Mahony and the document entitled Report to the People of God are relevant and admissible in this case. Defendant has raised no objection to the manner of giving of notice to appear and produce this document, and its objections based on relevance and prejudice are without merit. The motion to quash should be denied in its entirety.
DATED: May 29, 2007 Respectfully submitted,

BRADY LAW GROUP
And
RICHARD L. KATZ, INC.
By____________________________
Steven J. Brady, Esq.
Attorneys for Plaintiff

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