with malice aforethought

By Diogenes ( articles ) | Jun 05, 2003

If I understand what the law guys are telling me, to put a bishop in jail as an accomplice to his priests' misdeeds, the state has to show not simply that he knew Fr. Rudy was celebrating diversity with boys, but that he intended Fr. Rudy to celebrate diversity with boys. So the Washington Post:

Prosecutors and legal experts said, however, that there are huge legal hurdles to prosecuting a bishop who has not committed sexual abuse himself, but has not prevented abuse by others. "The first problem is proving criminal intent," said Robert M. Bloom, a professor at Boston College Law School. Even when prosecutors can show "all kinds of inaction" by bishops in the face of sexual misconduct by priests, it is not easy to prove that "they conspired with these bad priests to allow this to continue," he said.

And this makes sense. In spite of our extreme exasperation in face of child abuse, we really don't want a state that imprisons our fellow citizens on the grounds of incompetence, cowardice, or sloth.

But this makes the Phoenix Capitulation all the more troublesome. The Bishop and the DA agreed to say this:

The investigation developed evidence that Thomas J. O'Brien failed to protect the victims of criminal sexual misconduct of others associated with the Roman Catholic Diocese of Phoenix. This Agreement is executed upon the conclusion that the public interest would be best served by settling the matter without criminal prosecution of Thomas J. O'Brien or the Diocese.

Now this seems to say that the state does indeed have evidence for criminal intent -- that is, that the nature of O'Brien's failure provides the DA with sufficient ammunition to go ahead with a prosecution -- but for prudential reasons ("the public interest") the state has decided it is better served by a plea bargain. And unless O'Brien and his lawyers felt a conviction was a near certainty -- or that the information that would become public during a trial would be worse than a conviction -- they could hardly have signed onto this damning language themselves.

Not being a lawyer, I may well be missing something here, but however I connect the dots it looks very, very bad.