Legal Pirouette

Marin County DA Ed Berberian switches his office's position, agreeing to Catholic Church demands to withhold sex-abuse documents from the press

In a boost to San Francisco Archbishop William J. Levada's efforts to keep documents on accused priestly sex abusers secret, newly appointed Marin County District Attorney Ed Berberian has officially reversed his predecessor's decision to provide SF Weekly with materials it had requested under the state's public records law.

Berberian's action, disclosed without explanation in a court filing dated Feb. 9, comes as a Marin County Superior Court judge was set to decide Feb. 23 whether or not the materials should be made public. Lawyers for the archdiocese had gone to court to prevent their disclosure. Neither Berberian nor Mari-Ann Gibbs Rivers, the deputy county counsel who represented the DA's Office in the matter, responded to phone calls from the Weekly seeking comment.

Others were quick to criticize the DA as having knuckled under to pressure from the archbishop.

“It's a major step backward for a public official to take,” said David Clohessy, national director of Survivors Network of Those Abused by Priests, an advocacy group. “Anytime you see a prosecutor caving in to an archdiocese to help maintain church secrets, it is cause for alarm.”

At issue is a trove of material that the church surrendered in 2002 after former San Francisco DA Terence Hallinan demanded that Levada turn over records pertaining to priestly sex abuse occurring as far back as 75 years. Such records could show, among other things, when Levada and other church officials became aware of specific allegations against individual priests and what was done about them.

Berberian's abrupt about-face brings his office into line with those of the two other district attorneys whose counties are within the boundaries of the San Francisco Archdiocese, San Francisco's Kamala Harris and San Mateo's James Fox. Harris and Fox have also opted for secrecy in refusing to make public documents pertaining to alleged sex abuse by priests in their jurisdictions, citing policy reasons.

The Marin County DA's files were of special interest because they contain materials related to Father Gregory Ingels, a longtime Levada associate and a prominent canon lawyer who in 2002 helped devise the American church's “zero tolerance” sex-abuse policy. In 2003, Ingels was charged in Marin County with sodomizing a teenage boy during the 1970s. But the charges were later dropped as the result of a U.S. Supreme Court decision that struck down as unconstitutional a California law that had extended the statutes of limitation for sex crimes.

The Weekly sought documents related to Ingels and other accused priestly abusers in August. Then-District Attorney Paula Kamena, who has since resigned, agreed in writing to provide some of them. But Berberian, who at the time served as Kamena's top deputy, felt compelled to inform the archbishop about the impending release, and church lawyers entered the fray, filing legal papers seeking to prevent the material from becoming public.

In obtaining the materials, Kamena could have used a grand jury subpoena that would have compelled the church to turn over the documents. Instead, the former DA signed a legal agreement, or protocol, that, the church contends, requires the documents to remain secret unless a criminal prosecution is instituted. (San Mateo's Fox signed a similar protocol.) The agreement states, “Unless compelled by legal process, or required to be revealed in order to conduct a prosecution, none of the information provided will be provided to the public.”

The DA's Office is unlikely to have agreed to turn over the material to the Weekly unless it was convinced that the newspaper's request fell under the rubric of “legal process.”

After its initial agreement to release the documents, the DA's Office began to send mixed signals, particularly since the archdiocese's legal team, headed by former U.S. Attorney Joseph Russoniello, entered the picture.

Church lawyers have argued that besides violating the protocol's privacy assurance, releasing the records would cause “irreparable harm” to the privacy and reputations of “priests, victims, and other third-parties.” After the church took the extraordinary step of going to court to prevent the DA from responding to the public records request, the DA's Office undermined its own position by failing to meet a deadline to file a court document setting out a legal rationale for the release.

Kamena resigned in January, citing health and family reasons, and Berberian was appointed to fill out the remainder of her term. From the start he had served as Kamena's point man on the issue. In December, he defended his handling of the matter when it appeared that the DA's Office had rolled over by missing the deadline for filing written arguments. At that time, he said that he would have nothing more to say until the issue was resolved.

In the Feb. 9 agreement between the archdiocese and the county counsel's office, the new DA abandoned any pretense of wanting to turn over the records, acceding — some six months after Kamena said she would release the records — to the church's position that the DA's Office was bound by the protocol after all.

Indeed, whether Kamena ever really intended to release the documents may never be known. The former DA, who did not respond to interview requests when the Weekly earlier disclosed the existence of the protocol, declined to be interviewed for this article. She left a brief phone message that said, “I'm retired. I know nothing about the stipulation. So I have nothing for your story and would appreciate it if, however you got my home number, you would lose it.”

Upon learning of the Marin DA's about-face, SF Weekly Editor John Mecklin said, “It is absolutely clear that the California Public Records Act places a duty upon the district attorney to release public documents. It is equally clear the district attorney cannot sign away that duty.

“We are, therefore, closely reviewing legal options.”

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