At age five, 1954, "the Bishop" (Chicago's Cardinal Stritch) stood over me and said, I had to "stop babbling" about what the priest did to me. It took me 40 years to talk about it again. Today, I babble.

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Monday, September 21, 2009

Baker may still offend as ‘lewd fondling does not require an erection,’ reads pedophile priest 5th Amendment plea, hearing tomorrow

By Kay Ebeling

Because he might commit more sex crimes in the future, Michael Baker cannot release his answers in interrogatories about past sex crimes, according to a Defense motion be heard in L.A. Superior Court Tuesday morning. Baker's age is not relevant, reads the motion, because “Lewd touching with the hands does not require the ability to achieve an erection.”

Just when you think the you've read the most outrageous argument ever by an attorney defending a pedophile priest, something like Defense Motion for Protective Order by Donald Steier slaps you in the face. Steier is asking Superior Court Judge Emilie Elias to keep all discovery documents in the upcoming Luis C civil case regarding Baker secret until trial.

It is one of the more inventive mutilations of the Fifth Amendment yet by an attorney defending a predator priest. We have Steier asserting Baker's right to refuse to answer questions that may be self-incriminating some time in the future, since it is likely the pedophile will re-offend. It's a chilling reversal of Minority Report reasoning, and that was science fiction.

“This particular situation creates a real danger, that if defendant answers questions about past acts of sexual crimes, they will be admissible automatically in any future prosecution for a sexual offense.

“If Defendant were to be charged at any time in the future for a sexual offense not yet committed or alleged, any evidence of the sexual offenses contained in these complaints would be admissibe against him.

"Thus, his answers to interrogatories about past acts have a real potential to incriminate him in the future.

“The Fifth Amendment protects Defendant against such use of his testimony. It is clearly not impossible for him to be accused of a criminal act, whether he commits such an offense or not.

What about that erection?

“The gravamen of the allegations against him in the overwhelming majority of claims against Defendant in these cases involve alleged lewd touching with the hands, which does not require the ability to achieve an erection.

“Thus, defendant’s age is entirely irrelevant to the matter - and there has been no expert testimony to say that Defendant cannot possibly commit a sexual offense in the future.

Another slap in the face:

“Indeed, Plaintiffs, their attorneys, and other advocates have often recited the mantra, ‘Once a pedophile, always a pedophile.’

“Without debating the veracity of that cliché, it is clear that one cannot determine that it is impossible for Defendant to be charged with a sexual offense in the future. “

City of Angels says, “What an Ipso facto ex post Minority Report wacko interpretation of law. It will be amazing if any court of law recognizes it.

The hearing is tomorrow at 11 AM and CofA will be there, barring the unexpected…

Steier continued:

includes pedophilia?

Steier cites the “Penitent’s privilege,” where anything said in a practice like Confession where “the discipline or tenets of the denomination has a duty to keep those communication secret." He then says, “Some of those items within defendant’s personnel records include statements protected by that privilege.

”Huh? I

"If they're privileged and secret under tenets like Confession, what are they doing in his personnel file

I'm quoting myself above from below:
Church tap dances in Baker case to prevent discovery. Defendants include Mahony and the Paracletes. Hearing next week

*By Kay Ebeling
The Witness: It was Lent. Father Baker was on the right hand, I was on the other side of Father Mahony- I mean Cardinal Mahony was giving the Mass …

Steier also demolishes any reason regarding freedom of religion and a pedophile priest’s acts.

This case is 'merely a civil action between private litigants'

In this case Steier is correct:

Thanks to sleeping law enforcement in U.S. Attorney’s office in Los Angeles

More from Steier:

“Although the ‘clergy cases’ have garnered much public attention, each case is, nevertheless, fundamentally merely a civil action between private litigants. “

“Defendant has been afforded many rights, and those rights may be affected by the conduct of the parties in this litigation.”

The case of pedophile priest Michael Baker and his right to secrecy is much like a 1986 case regarding abuse of private citizens by the police force, Coalition Against Police Abuse v. Superior Court in 1986.

Continuously Steier’s argument is nothing can be put in public until there is a trial.

Steier writes that in this age of the Internet, anything can be disseminated. So “private matters that may never be admitted at trial could become easily accessible to the public if this Court fails to control the use of material obtained during discovery.”

Okay, does this sound threatening to you?

“Attorneys may not continue legal employment if they know that the client is using the process to harass or maliciously injure anyone. In this case, publicly disclosing sensitive and privileged records that were accumulated in confidence is a terrible, extralegal means of injuring a priest that trusted the Diocese with his confidences.”

“A protective order to prevent extra judicial disclosure of discovery material is warranted to prevent abuse of the court’s process and oppression of individual parties and witnesses,”

He again cites the case where private documents concerning the police force were returned and not kept by plaintiffs after litigation.


“I have known Father Doe 3 for over ten years and I represented him in prior criminal and civil matters.

“I currently represent him in Federal litigation and with respect to a criminal investigation.

“It is my understanding that Defendants Doe 1, 2, 4-7, 9-20, and Defendant DOE 8 created and / or maintains personnel records on its priests.

“Documents relating to canonical and legal claims, allegations, and actions are contained within a special personnel file, commonly referred to as a “confidential file.”

“Contemporaneously with filing this Motion for Protective Order, Defendant Doe 3 (Michael Baker) and I are responding to a Demand for Production of Documents, Set No. 1, propounded on or about May 6, 2009.”

HEY FOLKS, here Steier is describing the tap dance and other forms of obstruction of justice he has been doing re production of documents from L.A. Clergy Cases that in Baker’s case, half settled in Fall 2006, the rest July 2007.

Steier is still propounding to prevent release of those documents, now, post litigation.

Here is how the Church plans to respond to the May 2009 order to produce documents for Los Angeles plaintiffs:

“[Our] response will contain, among other things, various objections and assertions of privilege, including the attorney-client privilege, and the right against self incrimination, to the very same documents propounded to the Archdiocese, which documents are the subject of Defendant’s Motion for Protective Order.”

In other words don’t believe that they will cooperate after litigation is over, they never have before.


Quotes of note from Plaintiffs’ Opposition to Motion for Protective Order:

"Specifically the sexual exploitation of parishioners by pastors with whom they relate poses a threat to public safety, peace or order that is seemingly as substantial as that posed by deceptive religious recruitment practices, and the state possesses at least as compelling an interest in discouraging such exploitation."

Not to mention the state’s interest in “Truth in legal proceedings.”

Also, writes the Manly / Stewart firm for Plaintiffs, it’s no point arguing that right to privacy in California argument: This from Roman Catholic Archbishop of Los Angeles v. Superior Court 2005

“There must be an accommodation by religious institutions to the rules of civil society, particularly when the state’s compelling interest in protecting children is in question.”

The First Amendment refers to the “freedom to Believe;” But the freedom to Act “remains subject to regulation for the protection of society.” Cal. 4th Appeals Court 2005

From Judge Haley Fromholz (who oversaw the Clergy Cases until December 2007, when Judge Emilie Elias took over)

“Unwarranted concealment of information from the public would be ill-advised.

“The Court notes the Archbishop’s public statement that ‘moving the healing and reconciliation process forward requires the fullest possible disclosure of what happened over the victims.

“The Victims deserve nothing less.” - 9.19.05 ruling by Fromholz on a different protective order motion in the clergy cases in 2005.

If they're worried about a jury pool, it’s irrelevant, no a better word is moot - “in light of the media exposure that has already been devoted to this case.”


Not enough media exposure, as far as I'm concerned, but enough for the Judge to rule that release of information is not going to have much more influence on the jury pool than the information that has already been released.

In this particular case with Luis C the following is especially poignant:

“Neither he nor his family were ever warned. Such warning could very well have prevented the abuse from ever occurring.”

Could well have prevented the abuse from ever occurring.

Actually the church could have stopped the abuse from occurring way back in 1940 something.

“Gaining knowledge of Baker’s abuses and the archdiocese’s knowledge thereof is integral to Plaintiff’s healing.

"Neither the Archdiocese, nor DOE 3, have ever offered to willingly provide Plaintiff these documents and information, in order to help him understand the horrors to which he has been subjected.

“Plaintiff is being forced to engage in litigation in order to obtain this information, to help him understand how his abuse fits into the entire scope of the clergy abuse scandal.

To Help Him Understand

How his abuse fits into the entire scope of the clergy abuse scandal.

“Doe 3 (Father Michael Baker), arguably one of the most prolific and notorious sexual abusers to ever don a Roman collar, is currently serving a ten-year prison sentence, in part for brutally raping then-minor plaintiff over the course of several years.”

We'll see how things turn out at the hearing tomorrow.

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