Judge: New evidence very likely to produce different result on retrial, in case of Santillan vs Bishop of Fresno

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By Kay Ebeling
Creator, City of Angels Blog

Plaintiffs claim new evidence shows defendant frequently received reports of molestation which were either never documented or the documentation was ‘lost.’ (- Judge granting new trial in Fresno this week)

Plaintiffs also question: If this new witness and his mother reported pedophile behavior in 1967, why is there nothing about the report in the files defendants turned over before the first trial?

A date for new trial should be set at a status conference in Fresno July 15th.

Trying to prevent the new trial, Defendant the Bishop of Fresno claimed since they turned over the name of this new witness during pretrial discovery, his testimony is hardly new evidence. Defendants say plaintiffs had plenty of time to find him and interview him before the March 2009 trial.

The Judge rejected that argument by Defendants saying: “Plaintiffs’ counsel and investigators spent hundreds of hours locating, interviewing, and deposing witnesses.” Actually, all the defendants turned over was a list of names, birth dates, and addresses of the Santillan brothers' classmates.

In the case of the new witness, there was no information after the early 1960s.

“On documents produced by the school during discovery, there was no information provided to plaintiffs by defendant as to W Doe’s current status,” reads the order granting new trial.

Both Santillan brothers claim that since there is no record of W Doe’s report, it helps to prove another claim in their trial, that the Diocese and Bishop of Fresno would take reports of pedophilia and lose them or destroy them. Somehow for some reason there are no reports of any molestation by Anthony Herdegen anywhere in his file, and yet here is this former altar boy saying he came forward with his mother and reported the Monsignor in 1967.

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Somehow there is nothing about W Doe and his mother's report in the records turned over to the court and plaintiffs by the church.
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Looks like we'll be seeing Roger Mahony and John Steinbock plus other Catholic Church hierarchy testify all over again in Fresno soon in the retrial of Santillan vs Bishop of Fresno. They will take an oath on the Bible, then explain how there was all this pedophilia in the diocese, yet bishops and even priest MSWs somehow never noticed the crimes.

In order to get smart on Santillan versus Bishop of Fresno, I started reading, then spent the afternoon typing, sections of the judge’s order granting a new trial for younger brother Howard Santillan released Monday. The order is a good read. As is so often the case, the narrative is right there in the legal documents. Once again, it takes no creative wordsmithery, the story reveals itself as the defendants, judges, and plaintiffs speak their lines.

Part two of this story will be quotes from the Fresno Bishop’s opposition to motion for new trial, filed June 8th, a brief that so fully describes criminal activity of Monsignor Herdegen that at one point I had to throw the pages across the room and swear-

And catch my breath -

And I'm pretty acclimated by now to the shock of hearing about new crimes committed by these priests.

The Defense motion opposing a new trial reads almost like it was written by plaintiffs not the Church, it is so full of what I see as more evidence proving the Church’s guilt.

That document is filed by Weakley, Arendt & McGuire LLP in Fresno and Cole Predroza LLP in Pasadena, and I will be posting quotes in part two of this story in a few days.

That's two law firms representing the Catholic Church who filed this opposition, on top of the other law firm which we mentioned earlier, Stammer, McKnight, Barnum & Bailey.

And that's just in Fresno.

So for the record, and a little summertime reading, we copied some of the judge’s order here:

(Read previous City of Angels Coverage of the Fresno trial here http://cityofangels5.blogspot.com/2009/06/is-it-possible-lies-withholding.html

and here

http://cityofangels5.blogspot.com/2009/06/by-kay-ebeling-creator-city-of-angels.html )


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‘Ordinarily the ground of newly discovered evidence is looked upon with suspicion and disfavor’

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Following are direct quotes from the Judge’s order granting motion for new trial:

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Plaintiffs timely move for a new trial following entry of judgment on a jury verdict in favor of defendant, rendered after approximately three weeks of trial. The solid ground for the motion is the alleged discovery by plaintiffs of a person named W Doe (name of the new witness, possible victim, used in court documents , but at City of Angels we call him W Doe.), who claims to have been abused by Monsignor Herdegen and, with his mother, to have reported such abuse in 1967 to the principal of a church school claimed by plaintiffs to be affiliated with defendant. Plaintiffs claim W Doe came forward during jury deliberations after learning of the trial as a result of media coverage and has submitted a declaration in support of the motion.

DISCUSSSION

Newly discovered Evidence As A Basis For A New Trial.
The essential elements which must be established are

1, that the evidence is newly discovered,

2, that reasonable diligence has been exercised in its discovery and production, and

3, that the evidence is material to the movant’s case.

The rule is more applicable on the ground of newly discovered evidence.

Ordinarily the ground of newly discovered evidence is looked upon with suspicion and disfavor. It is a matter of public interest that there be an end to litigation and that a new trial should not be granted for the purpose of enabling a party to produce further evidence, unless he has shown some legally justifiable excuse for not having produced such evidence at the former trial.

But it must also be recognized that “despite the exercise of such effort, cases will sometimes occur where, after trial, new evidence most material to the issues, and which would probably have produced a different result, is discovered.

It is for such cases that the remedy of a motion for a new trial on the ground of newly discovered evidence has been given.

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The Evidence Is “Newly Discovered”
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The “Evidence” with which the Court is dealing in addressing this motion consists of the proffered testimony of W Doe that he suffered abuse, possible sexual abuse, at the hand of Monsignor Herdegen. For purposes of evaluating whether the “evidence” is newly discovered under the statute, the “evidence” is not simply the identity, or even the address in 1964 or 1965 or birth date, of W Doe.

Despite an investigation and discovery process that consumed many hundreds of hours, W Doe’s proffered testimony was unknown to plaintiffs and their counsel until April 2, 2009, after the case had been submitted to the jury.

Defendant suggests plaintiffs have not shown reasonable diligence because W Doe’s name and some personal information were revealed in some of the documents produced during the course of discovery. Had plaintiffs acted with reasonable diligence, they would have attempted to locate W Doe and interview or depose him before trial.

The question of whether plaintiffs exercised reasonable diligence to discover the evidence before trial is considerably problematic. Plaintiffs seem to suggest they left no stone unturned in their search for evidence of abuse of other victims by monsignor Herdegen.

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W Doe states that after he became an altar boy, on at least six occasions, Monsignor Herdegen…
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(Excerpts from Order granting new trial in Fresno continued)

Defendant on the other hand argues that plaintiffs failed to exercise reasonable diligence because not only W Doe’s name, but also his birth date and address, were revealed in several documents produced during the course of discovery, and plaintiffs failed to contact people such as W Doe, who presumably were in the best position to testify as to the abuse perpetrated by Monsignor Herdegen, not only on themselves but also on others with whom they were acquainted.

The question for the court is what constitutes reasonable diligence under the peculiar circumstances of this case.

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As to Howard Santillan, the Evidence is Material:
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(Excerpts from Order Granting New Trial in Fresno Continued)

There must still be a showing that such evidence also is material in the sense that it is likely to produce a different result. Evidence which is merely cumulative or which simply tends to impeach or discredit a witness is insufficient. Each case must be determined by its circumstances and the new trial granted or refused according to the view taken of the whole evidence, in connection with the alleged newly discovered evidence.

The declaration of W Doe submitted in support of the motion states that W Doe attended St. John’s Catholic School starting at the age of six. W Doe became an altar boy for Monsignor Herdegen when he was approximately ten years old. W Doe states that after he became an altar boy, on at least six occasions, Monsignor Herdegen came over to him, bent over, put his hands on each of his cheeks, and stared deeply into his eyes as if he were about to kiss him on his lips.

W Doe also states that within the first year after he became an altar boy, Monsignor Herdegen told him to kneel and pray and then stood in front of him, put one hand behind his head, and began pulling his face to his groin to the point where W Doe’s face was in Herdegen’s cassock.

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Okay, City of Angels has to interject here:

If a guy is pulling a young boy’s face down into his cassock, it’s time for alarms to go off. Remember this was 1967, but imagine a world where this can even happen. The Church needs to clean itself out-

Starting by putting ordinary pants on these men who work there.

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(Excerpts from Order Granting new trial in Fresno, continued)

W Doe also states that in 1967 after a Saturday morning Mass, Herdegen blocked his exit from a closet and began massaging his shoulders, and then inviting him into the rectory to have a glass of milk. W Doe states he felt “creepy” and so did not accept the invitation.

W Doe says he told his mother about Herdegen’s conduct and thereafter his mother took him to meet with Sister Vidaline, who was the principal of St. John’s Catholic School. At that meeting, which apparently occurred in 1967, W Doe states he told Sister Vidaline that Herdegen had pulled his face into his groin, had held his face, and looked deeply into his eyes, and he had given him a massage.

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At the trial the jury found by a nine to three vote that plaintiffs’ claims were barred
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(Excerpts from Order Granting New Trial in Fresno continued)

No persuasive reason has been suggested to question W Doe’s credibility.

The materiality of the evidence provided by W Doe lies in the fact that during the trial there was no testimony provided by a witness who claimed to have personally reported abuse to defendant before the last act of abuse was perpetrated against either of the Santillans.

Though the evidence at trial showed that some of the massages by Monsignor Herdegen occurred before the last act of abuse against plaintiffs and were witnessed or known of by persons who arguably were within the Church hierarchy, such evidence was indirect and conflicting, both in its presentation and in its meaning.

Massages constitute a much more ambiguous form of abuse if they are abuse at all, than does the act of pulling a young kneeling boy’s face into a person’s groin.

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Massages constitute a much more ambiguous form of abuse if they are abuse at all, than does the act of pulling a young kneeling boy’s face into a person’s groin.
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(Order granting new trial in Fresno continued)

Further, (at trial) there was no clear evidence as to who witnessed the massages and what their position was within the school and the church hierarchy.

Plaintiffs did produce a witness at trial who claimed her son had been abused by monsignor Herdegen and who reported the abuse to defendant. However, the report indisputably occurred after the last act of abuse against plaintiffs. There were no witnesses who testified at trial that they were abused by monsignor Herdegen and reported the abuse before the last act of abuse was visited upon either of plaintiffs.

There was thus substantial question at trial as to whether relevant members of the church hierarchy were on notice of Monsignor Herdegen’s massages and other conduct possibly constituting or creating notice of unlawful sexual conduct, whereas it would appear there would be less question about that where, as is claimed here, the alleged abuse was reported to the principal of a Church school which was established by Defendant for the purpose of fulfilling the defendant’s duties, and under the direct supervision, management, and control of defendant.

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(NOTE: Next post we will quote defendant’s opposition to motion for new trial where they try to claim the Bishop of Fresno has no direct connection to the school…a fun read to come next post on Fresno)
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(Judge order granting new trial in the case of Howard Santillan vs Bishop of Fresno continued:)

According to Cardinal Mahony’s testimony at trial, the school was operated by the Bishop. Based on this and other evidence received during the trial, the court thus rejects the defendant’s claim that as a matter of law, notice to the principal of the school is insufficient as notice to defendant for purposes of section 340.1.

The Court finds there is at least a factual issue for resolution by the jury as to that question.

As to Howard Santillan, therefore, who suffered the last act of abuse in 1973, the evidence is not cumulative, not merely impeaching and, particularly in light of the closeness of the jury vote (9-3), if W Doe is believed, new evidence is very likely to produce a different result on retrial.

As to George Santillan, the Evidence is not material.

The evidence at trial was undisputed that George Santillan suffered the last act of abuse in 1965, “close to 1966,” according to George himself. Thus the evidence provided by W Doe of a report to the school principal in 1967 would be of no assistance to George’s case as to either statute of limitations or notice for purposes of negligence, because the report of abuse occurred after the last act of abuse was suffered by George.

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Plaintiffs also claim the evidence provided by W Doe is material because it shows that defendant frequently received reports of molestation that were either never documented or as to which the documentation was “lost.”
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(Order for new trial in Fresno continued)

Plaintiffs also claim the evidence provided by W Doe is material because it shows that defendant frequently received reports of molestation that were either never documented or as to which the documentation was “lost.”
However, the failure of defendant to document this one claim of abuse from 1967 or the fact that the documentation relating to the abuse was lost, if either was the case, is either cumulative or irrelevant.

It is cumulative because other evidence was received during the trial which challenged defendant either did not document complaints of abuse or, if it did, that it “lost” the documentation.

It is irrelevant because the fact that no record of the abuse exists with regard to W Doe does not establish or even suggest that defendant “frequently received” reports of molestation that were either never documented or as to which the documentation was ‘”lost.’”

Thus the fact that there is no documentation regarding this single claim of abuse, if it is a fact, has no tendency to prove or disprove any fact of relevance to this dispute. As to George, the Court finds the evidence provided by W Doe is not material.

DISPOSITION:

As to plaintiff George Santillan the motion for new trial is denied.

As to plaintiff Howard Santillan, the motion for new trial is granted.

The parties are ordered to meet and confer and agree on a new trial date and submit a stipulation and order to the undersigned for signature. The Court sets a status conference on July 15, 2009 at 3:30 PM in Department 97B.

Signed June 12, 2009 by Donald S. Black

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End of Excerpts from Motion Granting New Trial in Fresno
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City of Angels has several more stories in the works about Fresno. As soon as the judge sets a date for the new trial, we'll start travel plans.

City of Angels should be able to cover the second trial in the case of Santillan versus the Bishop of Fresno. There is an Extended Stay in the north part of town and I've checked into it. A city bus will get me to the Courthouse each day from the Extended Stay, which is only $34 a night or so. Plus, as we did in Chicago last summer, my TV job will come in at night over the internet, so I'll still be able to work at least part time on my day job, at night, while I cover the trial in Fresno.

So there is a good chance we will cover the trial in Fresno, be there in the front row to look the bishops in the eye as they speak to the public under oath.

Expect we will have to have another PayPal campaign to pay for train fare and two or three weeks at the Extended Stay.

APPEAL FILED:

On 16 June George Santillan filed notice to appeal the April 2nd judgment, which last week was overturned for his younger brother Howard Santillan but not for George.

Which is smart as the Santillan brothers and their lawyers may just find more evidence of notice, dating back to even before the 1950s concerning Monsignor Anthony Herdegen of the Fresno Diocese.

We can get to Fresno from L.A. easy on Amtrak

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OH ALSO

Upcoming stories soon about the Las Vegas connection and the Bernardine Clinic connection and oh there’s so much - I’ll have stories to write late into my old age….


In the video below you can see the players in the upcoming retrial in Fresno. First we see Howard Santillan whose new trial was granted. Peeking from behind Howard is Anthony DeMarco, then older brother George Santillan and DeMarco are walking down the Fresno Superior Court hallway.



This file footage and report comes from ABC 30 Fresno June 15th of the granting of new trial, on their website they provided embedding code for this video. Tony DeMarco is the ever vigilant plaintiff attorney who has litigated hundreds, maybe thousands of motions in Clergy Cases all over the state since 2003.

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In case anyone missed this from the SNAP website:

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Las Vegas:
7 perpetrator priests spent time in Sin City parishes

SNAP Press Statement

For immediate release: Tuesday, June 16, 2009

Statement on seven abusers now living in Las Vegas

(See full statement at http://snapnetwork.org/ )

Statement by Rita Prince

With no subpoena powers or church whistleblowers or special talent or massive effort, our group has found seven Catholic priests who have molested elsewhere, then moved here to Las Vegas.

We suspect there are others, maybe dozens of others.

Here’s who we’ve found right now.

-- Fr. Gus Krumm of California
-- Fr. Theodore Anthony Geerts of Iowa
-- Fr. Edmund Boyle of Washington
-- Fr. Theodore Meisner of Kentucky
-- Fr. Robert A. Bowling of Kentucky
-- Fr. James Beine of Missouri
-- Fr. James Patrick Feeney of Wisconsin

Bishop Pepe should permanently post this information on his diocesan website.

Bishop Pepe should insist that these men live in independent, professionally-run centers so that they can get therapy and so that kids can be safeguarded.

1. Fr. Gus Krumm
Lawsuit filed last week in Orange County Superior Court.
http://www.ocregister.com/articles/diocese-school-krumm-2459723-lawsuit-abuse

Worked at St. James the Apostle Church 1940 N. Martin Luther King Blvd. in Las Vegas in the 1980s
http://www.ocweekly.com/2004-07-22/news/all-aboard-the-pedo-train/1

2. Fr. Theodore Anthony Geerts
Separate lawsuits filed in 2003 and 2005

http://www.bishop-accountability.org/ia-davenport/media/2003-10-31-Ruger-PriestDavenport.htm
http://www.bishop-accountability.org/news3/2005_06_18_Ruger_ManSays_Theodore_Geerts_1.htm
Worked at St. Bridget in Las Vegas in 1991-92.

http://www.bishop-accountability.org/ia-davenport/assignments/Geerts-Theodore-Anthony-Davenport-IA.htm

3. Fr. Edmund Boyle
Lawsuit filed in Seattle in 2003

http://www.bishop-accountability.org/news3/2003_04_26_Tu_AbuseAt_Edmund_Boyle.htm
Pled guilty in 1987 to exposing himself to a mentally retarded 12 year old at a Nevada hospital where he was a chaplain
http://www.seattlepi.com/local/228159_settlement11.html

4. Fr. Theodore Meisner

Lawsuit filed in 2002 in Kentucky

http://www.bishop-accountability.org/news3/2002_07_31_Peter_13More_Daniel_Emerine_ETC_1.htm
Worked at St. Christopher’s parish in Las Vegas I (1984).
http://www.bishop-accountability.org/ky_louisville/accused_priests_R.htm#meisner

5. Fr. Robert A. Bowling

Lawsuit filed in 2003 in Kentucky

http://www.bishop-accountability.org/news3/2003_01_22_Wolfson_9More_Edwin_Scherzer_5.htm

Worked at Our Lady of Las Vegas (1970 - 1972)

http://www.bishop-accountability.org/ky_louisville/accused_priests_R.htm#bowling

6. James Beine (a.k.a. Mar James) from St. Louis MO

Civil suit filed 1994; 7 other suits filed; 2 claims settled for $110,000. Convicted 2003 on possession of child pornography.

http://www.bishop-accountability.org/news3/1994_06_10_Rogers_ManSues_James_Gummersbach_1.htm

Lived in Las Vegas as of 2007

http://www.bishop-accountability.org/news2007/01_02/2007_01_08_BellevilleNewsDemocrat_MissouriAG.htm

7. James Patrick Feeney from Milwaukee WI.
Convicted of abuse in 2004

http://www.bishop-accountability.org/news3/2004_02_27_Wilson_FeeneyVerdict_John_P_Feeney_6.htm

Complaint made in Las Vegas

http://www.bishop-accountability.org/news2008/01_02/2008_01_16_ClarkCountyDistrictCourt_ComplaintIn.htm

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City of Angels is taking particular interest in these Las Vegas cases, which show Sin City was another dumping ground for pedophile priests.

There is a connection with the clinic in San Bernardino.

And my parents used to go to Vegas all the time, they liked it best during the years it was run by the mob, up to the early sixties. So did I. In Las Vegas using an obvious fake ID when I was 16, I was able to gamble and go to shows where there were naked people.

On Sundays my parents would always hit the Las Vegas Catholic Church for a fast Mass before getting back to the tables. Then the jokes they’d tell, especially after the very early AM service, where my dad just couldn't get over how “showgirls,” still in makeup and costume, would show up for their early Sunday morning Mass and Communion before heading home from work.

Showgirls in makeup and costumes, just a little jacket thrown over it, going to church and Communion early Sunday mornings in Las Vegas in the early 1960s.

Ah the wild west. We thought Boston was bad….

Onward.

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Don’t forget to click the PayPal Donate button in top left column about every three months or so - help pay our expenses to go places like Fresno in the near future…..
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POST SCRIPT

The Bishop of Fresno is from Los Angeles:

Bishop Steinbock was born in Los Angeles, California, July 16, 1937. He was ordained to the priesthood May 1, 1963, at the Cathedral of St. Vibiana in Los Angeles by Cardinal James Francis McIntyre. He served as associate pastor in two parishes in East Los Angeles from May 1, 1963, until he was appointed administrator of Santa Isabel parish in East Los Angeles on December 11, 1972. . . . .

In 1991, Steinbock became fourth diocesan bishop of the Diocese of Fresno, California.

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Which one of these men is John Steinbock?





And which one is Eric Sweringen?

WHO?

Fresno Diocese Continues to Let "Accused" Child Molester Work with Children

By Paul Kiesel
Injury Board
March 19, 2009

A little over two years ago, a Fresno jury found Father Eric Sweringen guilty (9-3) of molesting a former altar boy, however, Bishop John J. Steinbock has continued to allow this man to work with children at the Holy Spirit Parish in Fresno, California.

Continued at this link: http://losangeles.injuryboard.com/miscellaneous/fresno-diocese-continues-to-let-accused-child-molester-work-with-children.aspx?googleid=259428
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Or read more about Sweringen at Bishop Accountability under S:

http://bishop-accountability.org/priestdb/PriestDBbylastName-S.html

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Don’t forget to pay for Readership at City of Angels, click the PayPal Donate button in top left column about every three months or so. Help pay expenses for trips to places like Fresno in the near future…..

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Onward...