The Mercure Verdict

When I read the newspaper this afternoon about the sentencing of Gary Mercure, a former associate pastor at Our Lady of the Annunciation in Queensbury who raped two boys in Massachusetts in the 1980s, I pulled out my pen and circled the remarks of the judge and the prosecutor who commented. Judge John Agostini said, “You’re not a priest. You’re no more than a common thug,” and First Assistant District Attorney Paul Caccaviello said “It is strongly suggested that he’s a predator who happened to wear priest’s clothing.” 
I circled those responses because it reminded me of what the Roman Catholic Diocese of Albany has not said, that it has not from what I’ve seen taken jabs at Mercure, and judged him.   I have to say, that’s commendable. And when I met Bishop Howard Hubbard of the Albany Diocese after he delivered a homily for the Queensbury parish to apologize for sexual abuse by clergy, I told him so.
So reads a recent post (presumably from reporter David Taube) posted on Feb. 17th, under Chapel Chat, a blog about local religious organizations sponsored by the Post-Star, an Albany area newspaper.

As a church-going Catholic I always find the aftermath of our scandals interesting.

Church officials rarely confront allegations of sexual misconduct head-on, and never publicly. When they cannot defuse them, they try to kill them with a long and stony silence. However, the silence ends if the allegations are proven. Suddenly, the officials can’t wait to put on a public display of hand-wringing. They express sadness and disappointment. Yet, they’re seldom judgmental toward the perpetrator, as Mr. Taube points out. These official acts of contrition are supported by a lay chorus in sackcloth and ashes. The crimes discovered in the glare of secular law are soon filtered through stained-glass to soft theological hues.

"Yes, a priest has been convicted of criminal charges", they will say. "But, did you know that there is nothing so bad that good cannot come from it?"

We’re primed to hear, once again, about the sinful nature of man. About the eternal need for repentance, for forgiveness, for rehabilitation. I don’t disagree with the importance of gospel values. However, it’s both dangerous and inappropriate to link spiritual values to a verdict just because it concerns a priest. Can it be proper to use gospel values to explain away criminal conduct?                           
The secular authorities in New York State and the Commonwealth had a right and an obligation in the case of the Rev. Gary Mercure to find and punish illegal actions. In this context, beliefs are beside the point. It's not that police expect the Catholic clergy to be "better than” other people, or that these clergy have “fallen” to our level.  It’s more that the clergy are expected to be "as good as" other people, and no less accountable for their actions.
To be sure, it’s not hard to find evidence that Jesus expects believers to strive for perfection. The gospel reading for Feb. 20, for example, takes the law of Moses to a higher pitch. “An eye for an eye” thinking should be replaced by higher values. We should not rest with responding to evil in kind, but should turn the other cheek. We should not go the one mile, but two, three – as many as necessary. These are gospel values.

But, the Rev. Gary Mercure was not punished by the state because he failed to live up to gospel standards of perfection. He was punished because his conduct failed to measure up to even a minimum standard of decency. It is revealing that this failing was not discovered in-house, so to speak, by the so-called experts in morality at the Diocese of Albany but, instead, by public servants at law enforcement agencies.

It’s also worth noting that Bishop Hubbard waited until Mercure’s conviction before asking the Vatican to laicize Mercure.  Apparently the 20 to 25 year state prison sentence had a sobering effect on the Bishop. We must ask — why did it take so long for Mercure’s depredations to register on Hubbard’s sense of justice? What was there about the Mercure case the day after the verdict that Hubbard did not know the day before the verdict?

The Mercure verdict is important because some measure of justice, so often denied to victims of sexual abuse within the church, was finally found for these two men, albeit 25 years later. It is also important because of what we learn from the reactions to the guilty verdict, one of which I have placed at the top of this post.

There is a third reason for the importance of the trial. During it, an organization’s many good works and motivations were put into question. Thankfully, it survived the ordeal. This is an organization that is constantly in the news and that provokes strong reactions. They've found a way to speak strongly, swiftly, and with moral clarity. I refer, of course, to SNAP (Survivor’s Network of those Abused by Priests).

First, the importance of the trial in itself. The Rev. Gary Mercure was found guilty beyond a reasonable doubt, by a fair and impartial jury, of crimes committed in Massachusetts against two children. The crimes dated from 1986 and 1989. This verdict was a triumph for victims, for their families and supporters, and for the general public. The losers would appear to be Mercure, who was finally held accountable, and the officials of the Albany Diocese, who have long shielded Mercure from this reckoning. According to SNAP, he was sent away for rehabilitation to a still unnamed mental-health facility in Pennsylvania about 15 years ago. Now that close to a dozen accusers have come forward, there is no reason to believe that his crimes did not start sooner.

The presiding judge was John Agostini. During the 8.5 million insurance trial which I have studied at some length, Judge Agostini appeared to be a scrupulously fair judge. He was no less effective here. He is meticulous.  This is important because during the Mercure trial (held in the Commonwealth of Massachusetts and concerning 2 Massachusetts incidents only) he allowed many details and witness statements about crimes in New York into evidence. All of these were challenged throughout the trial on evidential grounds by the counsel for the defense, Michael O. Jennings.

This New York evidence will almost certainly be at the heart of any appeal. Based on the care with which Agostini guided the proceedings, a win on appeal is unlikely. The conviction of Mercure sets the stage for many more court actions against the Albany Diocese over the next 5 to 10 years. This explains the strong reaction from the diocese, which we will address shortly.

I quoted a lay reaction at the start of this post. Note Mr. Taube’s exclusively theological train of thought – he asserts that the lack of judgment on the state of Mercure’s immortal soul by church officials is admirable. Certainly the writer has a point. Humans know nothing with certainty about anothers salvation. Indeed, they know nothing with certainty about their own.

However, I find the post objectionable because the writer misuses the words of the prosecutor and the judge to make his point. The prosecutor and the judge did no more than their duty. The DA was recommending a sentence, as he is obliged to do, and the judge was busy judging. But, these actions are under the standards of man’s law, not God’s, and they did not pretend otherwise. They were factually correct in pronouncing Mercure a predator.

We contrast their devotion to duty to the statements of the officials of the Albany Diocese. We find the latter lacking, and contradictory.

First, although Mercure has a record as long as his arm, the record shows that church officials pretended, again and again, that nothing was amiss. They only admitted what they were forced to admit. One occasion was in the mid-1990’s, when the Watkins affair resulted in a change of Mercure's parish assignment (though this was not made public at the time). Another occurred in 2000 when a credible charge was made by a victim's mother. Again, this was not made public at the time. In fact, the only reason we know of the complaint now is that the diocese disclosed it after the convictions (though they had denied knowing of any other allegations before the conviction).

In 2008,  complaints were vented at a press conference coinciding with the loss of Mercure’s public ministry. The press conference was organized and attended by SNAP representatives, among others. The public airing of multiple accusations against Mercure explains why this press conference became the focus (indeed, almost the linchpin) of Jennings’ defense of Mercure during the trial.

In 2008, Ken Goldfarb, spokesman for the diocese, was still insisting that, in so many words …we must not rush to judgment, let’s give the benefit of the doubt, we have received very few complaints…, and so on.  Mysteriously, although charges were brought by Massachusetts in 2008, it took well over two years for the trial to begin. There is a story there. It would be nice to know it some day.

Even as the trial began on Jan. 31 or so, Jennings continued to seek delays. He insisted that he needed to wait for a crucial witness. Wisely, and justly, Agostini ruled that the trial, so long delayed, should finally begin without the so-called crucial witness.

But, the trial did not begin before Ken Goldfarb announced that the impending charges against Mercure, far from being isolated, unfounded or the like, were now considered by officials to be  credible. What a remarkable change of heart. His exact words were that the officials of the diocese found the charges “profoundly troubling” and “reprehensible”.  Just as suddenly, by issuing additional press releases to the now-growing media pool, the diocese began aligning itself behind the two victims, instead of the Rev. Gary Mercure.

It is too much to suggest that this re-evaluation of the case by the diocese, on the eve of the trial, was a  shift in strategy, and that they were preparing to jettison the Rev. Gary Mercure, now that justice could no longer be forestalled?

Their new-found horror at the charges certainly fit with their simultaneous protests that the diocese was not funding Mercure’s defense. This invited more questions about how much money, exactly, the diocese was still giving Mercure.  Through some follow-up from journalists (not disclosure by the diocese) we learned that Mercure continued to receive pension payments (though he was denied regular employment or diocesan housing). Oddly, the subject of health insurance didn’t come up, but it’s known to be a standard diocesan benefit for “clergy on involuntary leave” in the Springfield Diocese and in some others.

Other questions were unanswered, or perhaps not even asked: why and how is it that Michael O. Jennings, a highly-paid criminal defense lawyer for Bishop Thomas Dupre, became Mercure’s lawyer? And, who is paying him? There is a story there. It would be nice to know it some day.

By far the most visible church reaction to the verdict was published in the Times Union (Albany, NY) and the Berkshire Eagle (Pittsfield, MA). It was titled “A Test of Faith: A Catholic priest confronts his rage over sexual abuse within his church” by the Rev. Kenneth  Doyle. The full article can be seen here.

In it, we learn a lot.

We learn that the decision of a woman on Rev. Doyle’s parish staff to pray for Gary Mercure (an attitude at first questioned by Rev. Doyle) was, after some reflection on his part, found by him to be both noble and Christian. We learn that nothing that Rev. Doyle did led to this tragedy, although it did lead him to feel saddened, ashamed, and angry.
Putting aside his sadness, shame, and anger for a few moments, Rev. Doyle throws in some history lessons: that the Catholic church opened the first orphanages and medical clinics in history, that it kept learning alive during the Dark Ages and founded the first universities; that it sponsors one-sixth of all the hospital beds in America and that it is affiliated with Catholic Charities, an operation that serves more of the poor than any other private agency in our land.

It also, according to the Rev. Doyle, has annually resettled nearly a third of all the refugees who come to our shores.

We learn that just when the Rev. Doyle thinks that the sex abuse crisis might be over, just when he begins to relax a bit and starts to feel this shameful chapter in the Church's history is finished, just then, something like the Mercure trial comes along to burst his bubble.
And so, when something like this comes along, Rev. Doyle goes to sleep each night troubled and he wakes up feeling the same way. But, in the next sentence, we learn that the Rev. Doyle gets up and resolves, for one more day, to keep on doing what the Rev. Doyle was called to do.

I was puzzled about the meaning of this last line of the essay until I looked beneath it.  There I found that what the Rev. Kenneth Doyle is called to do is to fill the office of the chancellor for public information for the Diocese of Albany.

Suddenly, everything clicked into focus.

It makes sense to me that the Albany Diocese would feel that the vomit and the blood and the semen and the stench of the Mercure trial needed to be cleansed. It made sense that since the trial was public, that the absolution must be public as well.

Who better to absolve than a priest, and to boot, a priest who is a chancellor, a high official?

It makes sense that the cleansers would be those in charge of defending the institution that needed cleaning. Those who are at risk from further claims in more “chapters” to come. Those who never saw the abuse, or, those who kept it hidden, and all those who forestalled the victims in their quest for justice. We have seen this behavior in Springfield, and in so many other places. Is it any surprise that it is happening in Albany? It is the big lie, the one that is the hardest to believe. Partly, because it is so big, and partly, because it is so audacious.

It will be appreciated that all of this, the absolution, the venting, the hand-wringing, the conversion experience, the raw emotions, the wiping clean, the staunch defense, has little to do with the Rev. Gary Mercure and even less to do with his victims. It is not even about the Rev. Doyle. It is all about the Catholic church.

The Rev. Doyle implies, like Mr. Taube, that the only real and lasting solution to the difficulties is a theological one. A solution that is grounded in forgiveness, and only realized by accepting our limitations. Salvation is found in bucking up and carrying on, like he does.

It’s not just that he prays. He writes that his duties as a priest would be impossible without prayer.  He writes that the solutions, for him, are his three Hail Marys a day, and his fidelity to the Catholic religion. He implies that these are the differences (hopefully among many) which separate him from the likes of the Rev. Gary Mercure.

Again, we reiterate: Beliefs, Faith, Acceptance, Prayers, Fidelity — these are beside the point. You don’t need to be a “devout Catholic” to find Mercure’s conduct, and the conduct of those who shielded him, deplorable. Again, we need to stress that the Rev. Gary Mercure was on trial not because of his limitations, but because he went too far. He transgressed the bounds of common decency.

It’s a measure of his depravity that his appetites knew no boundaries — moral, age, state or otherwise — as was so well brought out during the closing arguments by Mr. Caccaviello. As opposed to this behavior, Christ calls us to do more than we need to, not less, and toward the good, not the bad. But that higher calling, important in its own right, is not relevant here.

It is only the state, and civil law, that can call us, and hold us, to the bare minimum. These laws force us to do no harm to others, no matter what our beliefs consist of, and no matter how strongly we hold them, or even if we have none at all. These civil laws may not be gospel values, but they are fine values which civilized society readily accepts. More to the point, civil law prevailed when there was no justice to be found in church, much to the church’s shame.

Certainly, Jennings didn’t have much of a case. In his closing arguments, he all but admitted that Mercure was a rapist. However, he was at pains to make the distinction that the alleged rapes were far more likely to have happened in New York than in Massachusetts. With cards like that, it’s not hard to understand why his defense consisted of putting the victims on trial.

He questioned their veracity and their motives. He did the same with SNAP.  It was the SNAP press conference, he argued, that poisoned the jury pool, and made a fair trial impossible.  It was the SNAP press conference, he claimed, that had branded his client a “rapist”. He called special attention to the SNAP “network” during cross-examination of witnesses and in his closing argument, implying that the group was a conspiracy. This network, he claimed, was pulling the levers, arranging meetings, plotting with victims. He stopped just short of saying that SNAP encouraged the plaintiffs to fabricate evidence. And though he did not say that, he managed to plant the implication for the jury to consider.

Most serious of all, he claimed that SNAP was responsible for arming the New York victims with the information needed to bring suit in Massachusetts (because of the discrepancies between the SOL laws in the two states).  If he had succeeded in convincing one or two jurors of this, the outcome might have been far different. In effect, Jennings put public disclosure; free speech; the right of advocacy groups such as SNAP to reach out to individual victims; the ability to link victims one to another to offer counseling, information, and resources – all of this – on trial. Thankfully, the jurors did not buy his arguments. The guilty verdict for Mercure was in equal measure a “not guilty” verdict toward SNAP.

It was interesting that another part of Jennings’ closing summary to the jury stressed the need for the  “moral certainty” that must accompany a juror’s verdict of guilty beyond a reasonable doubt.  This injected a theological aspect into the debate, one that well might have given an indecisive or overly-scrupulous juror pause. However, the jurors did not shy from the challenge.  They found beyond a reasonable doubt and, to the depth of a moral certainty, that the crimes were committed, in fact, just as the plaintiffs described them.

I suspect that the Rev. Doyle, or whoever next fills the office of the chancellor for public information, may soon be mounting more defenses of the Diocese of Albany. The victims, having found their claims to be vindicated in one state, will press more claims elsewhere. Some of those claims will include charges of supervisory lapses.

We can expect that there will be more chapters in this saga.