Blocking a grand jury report on St Paul’s School in Concord NH, a judge ruled that a 2003 report on the Diocese of Manchester failed to protect legal privacy rights.
- “Did my bishop throw his priests under the bus illegally?”
This post is by necessity contentious, so it must begin with a disclaimer. The current Bishop of the Diocese of Manchester is not in any way complicit with the events described herein with one possible exception: his recent publication of a list of priests who have been “credibly” accused. Ryan MacDonald wrote of this in his latest guest post, “In the Diocese of Manchester, Transparency and a Hit List.”
The term “credibly” accused has serious due process problems which even some bishops now acknowledge, but only because the standard is now also being applied to them. I described this affront to justice in “The Credibility of Bishops on Credibly Accused Priests.” Now there is a new and stunning development in this story. Saint Paul’s School in Concord, New Hampshire, with historic ties to the Episcopal church, has a long and storied history as a prestigious American prep school. Its distinguished alumni list reads like a Who’s Who of political insiders. It includes congressmen and senators, ambassadors and Secretaries of State, and the children and grandchildren of U.S. presidents.
Graduates of St. Paul’s include Watergate Special Prosecutor Archibald Cox, Former “Russia Probe” Special Prosecutor Robert Mueller, and Democratic Senators John Kerry (MA) and Sheldon Whitehouse (CT). In 2011, Princeton University Press published Privilege: The Making of an Adolescent Elite at St Paul’s School by Shamus Khan.
In recent years, St. Paul’s has been embroiled in a sexual abuse controversy. In 2015, former student Owen Labrie was tried and convicted for the statutory rape of a 15-year-old freshman while in his senior year at St Paul’s, a story reportedly connected to an unsanctioned school custom called “Senior Salute.”
In 2017, St. Paul’s was the subject of a sexual misconduct investigation led by former Massachusetts Attorney General Scott Harshbarger. His investigation included allegations over a forty year period from 1948 to 1988.
In July, 2017, New Hampshire Attorney General Gordon MacDonald convened a grand jury to investigate St. Paul’s School. The grand jury completed its investigation late in 2018 at which point a plea deal was signed between the Attorney General and St Paul’s School administrators.
The plea deal was nearly identical to one arranged in 2002-2003 by the New Hampshire Attorney General with Bishop John McCormack, former Bishop of the Catholic Diocese of Manchester, and his Chief Compliance Officer, Rev. Edward J. Arsenault. Both deals allowed their respective targets – St Paul’s School and the Diocese of Manchester – to squash a possible charge of endangering the welfare of minors in exchange for a five year plan of staff training and improved monitoring.
A central tenet of both deals was that the prestigious school and the Catholic diocese would waive grand jury confidentiality so the respective reports and documents could be published. Officials of both the Diocese of Manchester in 2003 and St Paul’s School in 2018 signed these waivers. In the case of the Diocese, the grand jury report and related files were published with massive local and regional media coverage in March, 2003.
This is why Ryan MacDonald published “In the Diocese of Manchester, Transparency and a Hit List,” a well-researched report of how this closed-door deal and its behind-the-scenes manipulation by some central staff of the Diocesan Chancery Office sabotaged due process rights for me and other priests.
NOW COMES JUDGE RICHARD McNAMARA
Ryan MacDonald’s article laid out the closed-door duplicity at work at the time the deal was carried out. My defense file and a vast amount of exculpatory material were requested by the Bishop’s Chief Compliance Officer, Rev. Edward Arsenault, under the false pretense of securing legal counsel for me. Once obtained, the confidential files were turned over to state prosecutors to be selectively published after the removal of exculpatory material.
The deal allowed the diocese to arrange for each accused priest to have a ten-day review to challenge in court any material deemed to be confidential. I was the only priest of this diocese to be denied that right. In the end, as Ryan reports, I protested the deal between my bishop and the state because of its blatant sabotage and misuse of privileged files.
My protest was sent to Bishop John McCormack’s appointed Delegate, Father Edward Arsenault, who seemed to be behind most of the suppression of rights. Like all other attempts to address this with my diocese, my multiple letters were met with silence.
I then wrote directly to Bishop McCormack who responded that the diocese tried in good faith, but without success, to prevent release and publication of confidential materials. He claimed that the Attorney General issued a subpoena to take indiscriminate custody of the priests’ files with no opportunity to challenge their publication.
In contrast, Assistant Attorney General Neals-Erik William Delker wrote in a letter to me that under New Hampshire law, grand jury investigations, reports, and files are confidential. For the report and related documents to be published, he wrote, the Bishop of Manchester had to waive confidentiality, and did waive confidentiality, on behalf of all parties involved.
Now, sixteen years later in a stunning development, New Hampshire Superior Court Judge Richard McNamara has denied publication of the grand jury report and investigation files in the case of St Paul’s School. In his 23-page order, Judge McNamara dropped a bombshell that should shake the earth beneath the feet of Catholic bishops and their lawyers across the land. In denying the Attorney General’s Motion to publish, he wrote:
- “For hundreds of years, the grand jury has been a buffer between the power of the state and the citizen. Confidentiality of witness and cooperator information has been an essential part of how the grand jury works since colonial times.”
Making this development more stunning still, the Attorney General argued that there is in fact a precedent in New Hampshire for publishing grand jury reports: The 2003 Agreement with the Diocese of Manchester. It is easy to see why the current Attorney General cited this precedent. In 2003 he was an attorney representing the Diocese of Manchester in the matter of negotiating settlements.
JUDGE: “ALL SORTS OF FALSE, DAMAGING, ONE-SIDED INFORMATION”
The following are excerpts from Judge NcNamara’s 23-page Court Order denying the Attorney General’s motion to publish the St Paul’s School report using the precedent of the 2003 Diocese of Manchester Grand Jury Report:
- “The OAG [Office of the Attorney General] argues that a common law precedent for such a report does in fact exist because the Hillsborough County Superior Court authorized an agreement between the OAG and the Diocese of Manchester to waive the secrecy of a grand jury investigation … and to authorize the release of sealed subpoenas, pleadings, and orders related to the grand jury investigation … The Hillsborough County Superior Court endorsed the Diocese-OAG Agreement without explanation and without any written order.”
- “The Court respectfully disagrees with the decision of the Hillsborough County Superior Court to approve the Diocese-OAG Agreement. The Agreement … fulfilled none of the traditional purposes of the common law grand jury. Rather than investigation of crime, the report is a post hoc summary of information the grand jury considered but did not indict on. It did not protect the privacy interests of those witnesses and subjects that were never charged with a crime by the grand jury.”
Judge McNamara explained that he is blocking publication of the St Paul’s School grand jury report for the same reasons that the Diocese of Manchester report and files should have been blocked in 2003. He wrote that grand jury testimony can involve “all sorts of false, damaging and one-sided information.” In holding that the Diocese of Manchester Report did not protect the privacy rights of those named, Judge McNamara concluded:
- “Mark Twain famously said that a lie is halfway around the world while the truth is putting on its shoes. In an internet age, he might have added that the lie will forever outrun the truth as search engines become ever more efficient.”
It is for these reasons, Judge McNamara ordered, that grand jury investigations in New Hampshire are confidential. As a reporter for the New Hampshire Union Leader observed, “His ruling decided a case that had been argued in secret” (see Mark Hayward, “Judge blocks release of St Paul’s grand jury info,” New Hampshire Union Leader, Oct 1, 2019).
TRANSPARENCY IN THE DIOCESE OF MANCHESTER
There are some alarming questions that arise from the handling of these reports, the potential for conflicts of interest, and the apparent absence of effective judicial oversight of the Diocese of Manchester grand jury report in 2003.
Publication of that report sabotaged the due process rights of many priests and placed damning information in public view resulting in condemnation without trial. The content from this report was then absorbed by the toxic site, Bishop-Accountability which was established for a singular purpose: to foster new accusations against priests with no effort to corroborate any of the claims gathered and published there.
Judge McNamara’s Order explains that a grand jury is seated for the purpose of investigating and prosecuting crime. In the cases of the Diocese of Manchester in 2003 and St Paul’s School in 2018, no indictments were issued. The Judge wrote:
- “Grand jury reports that criticize individuals are extremely controversial. A grand jury report that does not result in an indictment but references supposed misconduct results in a quasi-official accusation of wrongdoing drawn from secret ex-parte proceedings in which there is no opportunity available or, presented for a formal defense. The Florida Supreme Court described [such] a grand jury report as ‘not far removed from … and no less repugnant to traditions of fair play than lynch law.’”
The respective “deals” contain a hint of extortion. A misdemeanor criminal charge could be avoided if the administrations of the two institutions agreed to waive grand jury confidentiality and allow the reports to be published. The threat of prosecution weighed heavily on Bishop John McCormack who wrote in a December 10, 2002 letter to priests:
- “The substance of the [grand jury’s] conclusion was to weave 40 years of history into one moment, and, based on some rather, complicated legal understanding of knowledge and intention, they concluded that they had enough evidence to indict the Diocese of Manchester for the endangerment of the welfare of children…”
- “I agreed with the Attorney General that it was in the best interest of the Church and the people of the State to resolve this matter by a public Agreement between the Diocese of Manchester and the State of New Hampshire… Let me assure you that no archival material regarding any priest, other than those against whom we have had a credible accusation … was submitted to the Office of the Attorney General.” (December 10, 2002 letter to priests of the Diocese of Manchester.)
But was the threat of prosecution against either St. Paul’s School or the diocese even realistic? Louisiana State University Law Professor John S. Baker had doubts. Writing for the Boston College Law Review in 2004 Professor Baker revealed that the New Hampshire Attorney General admitted in 2004 that the theory of law behind the threat of such a charge was “novel” at best, and highly unlikely.
The statute of limitations for a misdemeanor child endangerment charge is one year while the time period of the grand jury report dated back forty years or more. The report unveiled not a single contemporary case. So why did Bishop McCormack sign such an agreement? The question remains unanswered, but it set a dangerous precedent for the Catholic Church in America. Prof. Baker wrote:
- “The Church should recognize the New Hampshire settlement for what it potentially is: the camel’s nose inside the tent.’… This intrusion by a state prosecutor into the jurisdiction of the Church may encourage and be the basis for actions by other state prosecutors… The decision by the Diocese to enter into this agreement represents a dangerous capitulation by one diocese that may have created a serious threat to the other dioceses in the United States.” (John S. Baker, “Prosecuting Dioceses and Bishops,” Boston College Law Review, 1061, 2004)
The claims of transparency in the Diocese of Manchester are highly selective. There is much related to this matter that is far from transparent. It would be difficult to believe that Father Edward Arsenault – who would later be charged, convicted, jailed and dismissed from the clerical state for his embezzlement of $300,000 from his Diocese – was not involved in the Kafkaesque diocesan affairs of 2003.
In his published resume, which has been removed from public view, Arsenault identified himself as “Chief Operating Officer / Chief Compliance Officer” for the Diocese of Manchester from 2000 to 2009. He was thus at the center of all that Ryan MacDonald wrote about in his report, “In the Diocese of Manchester, Transparency and a Hit List.” The resume went on to describe Arsenault’s role:
- “[To] provide advice and counsel to the Bishop of Manchester for pastoral governance, strategic management, and operational oversight of the Diocese of Manchester including but not limited to the successful settlement of over 250 civil claims associated with sexual abuse.”
In the strangest twist, the lawyer retained by staff and former staff, of St Paul’s School who successfully challenged publication of the grand jury report was Attorney David Vicinanzo, the same lawyer who Father Arsenault claimed was retained by the Diocese to represent me at the time Father Arsenault obtained my defense files under false pretense. Neither Arsenault nor Mr. Vicinanzo ever responded to my multiple requests for explanation in 2003.
Strangely, in December of 2003, nine months after the grand jury report and files exploded in the press, Arsenault wrote in a letter to me: “I have not yet had a chance to discuss with Attorney Vicinanzo the matters we previously discussed.” I never heard from Arsenault again.
In his successful blocking of the 2018 grand jury report on St. Paul’s School, Attorney Vicinanzo was quoted in the news media. He called Judge McNamara’s Order “a full-throated defense of the grand jury as an institution.”
Judge McNamara issued his Order stating that the 2003 grand jury report on the Diocese of Manchester should not have been published because it failed to protect the privacy rights of those involved. Just a few days previously, the current Bishop of Manchester, published a list of all 73 priests of his diocese who have been “credibly” accused. He did this, he says, for transparency.
There is much more to come on the murkiness that is now called “transparency.”
+ + +
Note from Father Gordon MacRae: David F. Pierre Jr. of The Media. Report has an excellent brief analysis of the above along with some links to how it connects to and impacts my own situation. See TheMediaReport.com (October 9, 2019): “Stunner: New Hampshire Judge Says 2003 Diocese of Manchester Grand Jury Report Never Should Have Been Released.”
You may also wish to read and share these related articles from some very accomplished writers:
- Justice & a Priest’s Right of Defense in the Diocese of Manchester by Ryan A MacDonald at A Ram in the Thicket
- Journalism Outside the Box: Wall St. Journal Bravely Profiles Stunning Case of Wrongfully Convicted Priest by David F. Pierre, Jr. at The Media Report
- Travesty of Justice: The Ordeal of Father MacRae by Catholic League President Bill Donohue at These Stone Walls
- Spotlight Oscar Hangover: Why ‘Spotlight’ Is a Terrible Film by Joan Wypijewski in CounterPunch
“In the course of my 1994 trial, and while sentenced to life in prison, and during State and habeas corpus appeals I have never been allowed to utter a single word in my own defense. In 2011 a two-part documentary video was made of my testimony. It went missing for several years and has just turned up.” – Father Gordon MacRae