Central New York Defends Its Defiance of Court Order

Posted by Kendall Harmon

In an interview with The Living Church, Canon Lewis described the case as complex with numerous rulings and motions prior to the start. She said it was regrettable that during the trial the court refused to consider any of the more than 1,000 pages of documentary evidence against Fr. Bollinger that the church attorney had prepared. She defended the diocese’s decision to withhold what became known as the Shafer Report from the court, describing it as a “privileged piece of attorney-client work product.”

The Shafer Report is identified with the last name of a previous church attorney retained by the diocese after Fr. Bollinger accused the former financial controller for the diocese of improperly gaining access to his personal financial records. In a letter to clergy after completion of the investigation, the diocese quoted a paragraph from the report, but the report itself has not been made public and there are no plans to do so, Canon Lewis said.

Read it all.

Filed under: * Anglican - EpiscopalEpiscopal Church (TEC)TEC Conflicts* Culture-WatchLaw & Legal Issues

35 Comments
Posted July 25, 2007 at 2:07 pm [Printer Friendly] [Print w/ comments]



1. The_Archer_of_the_Forest wrote:

Well, that’s what you get for missing filing deadlines. Judges have golf games to get to…

July 25, 2:53 pm | [comment link]
2. azusa wrote:

“She said it was regrettable that during the trial the court refused to consider any of the more than 1,000 pages of documentary evidence against Fr. Bollinger that the church attorney had prepared.”

And whose fault was that? Shameless.

July 25, 3:00 pm | [comment link]
3. robroy wrote:

Hmm, is the lawyer going to get paid for preparing the thousands of pages that went unused?

July 25, 3:03 pm | [comment link]
4. Scotsreb wrote:

It’s also what you get when someone in charge, believes that their dictat supercedes the law.

To quote a paragraph from the report, is making it, at least in part, a public document.  To withhold the balance of the report, is simply mendacious manipulation.

Combine this with the diocese trying to fire the presiding judge of the court for doing his job, then when failing to dimiss the judge, trying to change the venue, one is left with only one fair conclusion.  The diocese was not playing fair, had perhaps never played fair in the case and is now seen as a bully, attempting to rail road a victim they had targetted.

What now?  I hope that Bollinger+ seeks some compensation from the diocese.  The original cause of all this, the alleged child abuser, is now a former priest and therefore, no longer under the authority of the bishop.  That said, I hope that this alleged child abuser and predator, now has his day in criminal court.

July 25, 3:04 pm | [comment link]
5. MikeS wrote:

It’s a “privileged client-attorney work product” that cannot be made public, but they still quote a paragraph from it in their filings?  And then they expect no one to care where that paragraph comes from?

I’m not a lawyer, is this normal or this absurd?  Isn’t it normal procedure to argue about redaction first, before filing information from a document and before assuming that your judgment of the redaction is the correct one?

July 25, 3:13 pm | [comment link]
6. Pageantmaster [Katie bought Welby] wrote:

#5 You mean like waiver of privilege?

July 25, 3:20 pm | [comment link]
7. Pageantmaster [Katie bought Welby] wrote:

Can anyone tell me what taking the Fifth Amendment means?  I have often wondered.

July 25, 3:23 pm | [comment link]
8. R S Bunker wrote:

Wasn’t the veil of priveldge pierced when the Dio CNY released a protion of it in a communication to the clergy?

July 25, 3:26 pm | [comment link]
9. Henry wrote:

It appears to me that the report did NOT back up what they wanted it to, so they did not want to release it, BUT, they wanted to act like it said what they wanted and use that against Fr. Bollinger.  Now, they are trying to spin it to save face—sorry, already lost!!!

July 25, 3:29 pm | [comment link]
10. KAR wrote:

WHAT?!?!?!  There is a rule TEC can’t change on a whim and there are consequences for actions?

Of course they say it’s “regrettable,” this may be the first time in their entire lives that they had a rule enforced on them, now they can whine about the unfairness of it all ...

July 25, 3:35 pm | [comment link]
11. KAR wrote:

#7 Pageantmaster—It means you can’t force a person to testify against themselves, the term comes from Amendment V of the US Constitution where this clause is found.

If you ever watch US police shows or in the movies it is the first Miranda right of “you have the right to remain silent,” thus if you do not the state can use everything you say against you.

July 25, 3:42 pm | [comment link]
12. Pageantmaster [Katie bought Welby] wrote:

Thanks very much KAR

July 25, 3:45 pm | [comment link]
13. MikeS wrote:

Pageantmaster,
I’m not a lawyer.  What’s waiver of privilege?

I was wondering how they can redact a document down to one paragraph without arguing that this is the proper approach given the nature of the other information in the document.

It is kind of like basing a news report on an FBI/MI6 counter intelligence file with everything blacked out but the title and one paragraph.  It doesn’t build trust that the truth is found in the one paragraph.

Of course, discovering truth used to be the purpose of a courtroom, ecclesiastical or civil.  But that might, sadly, be passe.

July 25, 4:10 pm | [comment link]
14. Pageantmaster [Katie bought Welby] wrote:

Mike S
In England, you may claim legal privilege for a document in certain circumstances which are for the Court to rule on, but if you quote from it you are said to have waived your privilege.  Similarly Courts have the right to require disclosure notwithstanding privilege.  Was privilege claimed for this document?  If you do not claim privilege before the Court but merely disobey the Court then consequences including sanction and in English Courts imprisonment can follow.  But of course this is not England and this is not an English Court.

So mine was a question really, as it is always interesting to hear how things work elsewhere.

July 25, 4:23 pm | [comment link]
15. Pageantmaster [Katie bought Welby] wrote:

Oh one more thing.  In English law waiver is not merely for the passage quoted from but for the whole of the document quoted from.  Passages can be ‘blacked out’ if the Court allows.

Another question.  Does claiming the Fifth Amendment apply to documents as well as oral testimony?

July 25, 4:27 pm | [comment link]
16. Katherine wrote:

Pageantmaster, if the courts can legally acquire documents which incriminate someone they can use them.  What they can’t do in the US is require someone to testify against himself.  I believe it is also true that the jury may not assume that refusal to testify is evidence of the defendant’s guilt. 

Note to future church attorneys:  Don’t file cases if you don’t have evidence you’re prepared to introduce in court.

July 25, 5:17 pm | [comment link]
17. Mike Bertaut wrote:

I find it more than stunning that in 1,000 PAGES the attorney’s couldn’t provide enough evidence to incriminate someone.  I mean, were they getting paid by the page or what?  How long does it take to show someone is guilty of financial misconduct, or whatever (probably trumped up) charge they were trying to prove. 
Choked on their own chain, sounds like to me.
In any event, I’m happy +Bollinger was exonerated.
KTF!....mrb

July 25, 5:21 pm | [comment link]
18. KAR wrote:

Though here is seems to have to do with attorney-client privileges, which is a special protected relationship, thus may not be able to introduce certain documents.

I’m presuming that this ecclesiastical court is operating with similar ethics as the civil courts, especially with Canon Lewis reason for withholding a document that could be helpful to the case.

July 25, 5:25 pm | [comment link]
19. TonyinCNY wrote:

Mike, those 1,000 pages were not permitted to be entered into evidence at the trial because the diocese did not follow the mandates of the court and they violated canon law.  What is regrettable is that the diocese will not release the Shafer Report even though the court ordered them to do so.  What is also regrettable is that the diocese (that’s all the people, not the diocesan staff) has withheld this report withheld from those who paid for it.  What is regrettable is that Fr. David Bollinger has had his life turned upside down by this bunch.  The appeal to complexity is nothing more than obfuscation.

July 25, 5:29 pm | [comment link]
20. Irenaeus wrote:

“Well, that’s what you get for missing filing deadlines”

Maybe so, but what was fundamentally at stake here was the fairness and intregrity of the church court’s judicial process.
_ _ _ _ _ _ _

Note that the evidentiary privileges and protection of attorneys’ work-product applicable in secular courts apply here only if ECUSA canons make them applicable. I don’t know whether that’s the case.

Speaking of secular law . . . the U.S. Constitution’s guarantee of “due process of law” requires prosecutors to share with criminal defendants’ lawyers any exculpatory evidence prosecutors have. And rightly so: prosecutors’ fundamental duty is to seek justice, which is inconsistent with convicting the innocent.

As Scotsreb rightly noted, this diocesan arrogance and attempted abuse of power is what you get when the bishop believes his will supersedes the law.
_ _ _ _ _ _ _

This bishop might do well to set aside his miter and relearn some humility.
_ _ _ _ _ _ _

Mike S: You ask about waiver. There are a couple of waiver issues at play here.

—-Self-Incrimination: Under the Fifth Amendment to the U.S. Constitution, you cannot be forced to give incriminating testimony against yourself. Thus you have the right to remain silent when in police custody. If you’re a criminal defendant, the prosecution cannot require you to take the witness stand. But you can waive these rights if you do so knowingly and voluntarily. Thus if police take you into custody and give you Miranda warnings (e.g., “you have the right to remain silent”) and you choose to confess, your confession can be used against you. If you take the witness stand in your own defense, the prosecution can cross-examine you.

—-Evidentiary Privileges: The law protects various kinds of communications from disclosure in court: e.g., between husband and wife, lawyer and client, psychiatrist and patient. But the holder of the privilege (e.g., the client in a lawyer-client relationship) can waive the privilege explicitly (“I authorize my lawyer to disclose XYZ”) or by divulging the communication to others. If you disclose part of a privileged communication, a court may hold that you waived the privilege for all of it—-lest you be able to disclose the favorable parts and concealing the unfavorable parts.

July 25, 5:32 pm | [comment link]
21. Tom Roberts wrote:

As a member of the local diocesan Ecclesiatical Court, I find this story line rather humorous.
Irenaeus has pegged one point: in most cases Episcopal court processes follow US evidentiary procedures, but not in all. There is inevitably a lack of precedent in the local Ecclesiatical Court’s histories, and given that ecusa didn’t take CoE court precedents for their own, there would be considerable room for local interpretation of what is allowed and what is not.
But given that the Central NY ecclesiatical court is almost certainly comprised of two senior clerics and two legally inclined laymen, common sense almost certainly intervened here. Both sides were given deadlines to submit their cases. One side missed their deadline, and Common Law intuition demands that when that side is the prosecution, the defendant walks. I’m sure that some civil case law precedent can be cited to that effect, but given the latitude given to diocesan courts in this respect, there is no basis for appeal by the diocese to the provincial review panel.

What is particularly appalling however is the above cited whining by the diocesan spokesman about how the “evidence” shows Bollinger+ to be “guilty” of something. It ain’t evidence, and Bollinger+ isn’t guilty. At this point Bollinger+‘s status is a parochial matter.

July 25, 5:48 pm | [comment link]
22. Pageantmaster [Katie bought Welby] wrote:

Tom Roberts
In that case would the diocese claim of attorney-client privilege also be applicable to this court?

July 25, 6:18 pm | [comment link]
23. Tom Roberts wrote:

It is certainly applicable, and would probably be granted as a natural and intrinsic attribute of the role of any attorney as the representative of his client. Not that it would help convince anybody of anything other than the fact that the diocese had no concept of proper process. The reason why Central NY asserts privilege is to suppress evidence of possible prior wrong doing, which Bollinger+ would be best to ignore given the case’s dismissal.
Now, what a civil court if Bollinger sued the diocese for damages would do with this situation is another matter entirely. I suspect that the errant attorney might be reprimanded by the bar association. His activities do not seem consistent with any role as “an officer of the court”.

July 25, 6:56 pm | [comment link]
24. Pageantmaster [Katie bought Welby] wrote:

That’s very interesting Tom.

July 25, 7:14 pm | [comment link]
25. Cennydd wrote:

Humility, you say?  +Adams hasn’t got a clue as to what that word means!

July 25, 7:51 pm | [comment link]
26. Mike Bertaut wrote:

#19 TonyinCNY thanks for explaining that for me, reading the article the first time, it sounded like the diocese was saying it was a shame they could only get to the FIRST 1,000 pages!! 
I tell you, the Pharisees are in charge, and the law is not written on their hearts.
KTF!....mrb

July 25, 9:28 pm | [comment link]
27. David Keller wrote:

Folks, keep in mind the diocese was the prosecutor.  There is no work product priviledge for the prosecution.  They HAVE to reveal exculpatory evidence if asked. In the US the bill of rights doesn’t protect the prosecution. It protects you from overzealous agents of the state. Therefore, the 5th Amendment wouldn’t protect the prosecutor unless he was personally accused of a crime. By analogy.the diocese and bishop are held to a strict standard which they failed to live up to.

July 25, 9:28 pm | [comment link]
28. Tom Roberts wrote:

#27 David
This was an ecclesiastical court proceeding of Central NY own court. It is not bound by civil or criminal US precedent or law. Its canon’s strongly resemble them however, and your
“They HAVE to reveal exculpatory evidence if asked. “
would be a serious request by Bollinger+ if Bollinger’s presentment hadn’t been tossed out already. But technically, the diocesan court wouldn’t have to grant that request, though it would have almost certainly been a matter for appellate review on the provincial level if Bollinger had been convicted. As I pointed out before, given this equivalent to a summary dismissal, Bollinger doesn’t have much reason to pursue this in the church courts. Again, what now ensues in the civil courts over diocesan misdoings is another matter.

July 25, 9:47 pm | [comment link]
29. TonyinCNY wrote:

I’m not sure that I’m following you, Tom.  The ecclesiastical court ordered the diocese to turn over the Shafer Report and the diocese refused to do so in the discovery period.  The diocese was more interested in hiding the Shafer Report than complying with the discovery rules of the court.  Bollinger’s presentment was not tossed out until the trial had started, the prosecution had rested, and Fr. Bollinger requested that the court dismiss all charges.  The Bollinger request was a serious matter and he is fortunate that the court took such a strong position against the diocesan refusal to turn over evidence and the diocesan violation of canon law on the deadline for turning over witness lists.

July 25, 9:54 pm | [comment link]
30. RickW wrote:

So if you are offering your gift at the altar and there remember that your brother has something against you, 24leave your gift there before the altar and go. First be reconciled to your brother, and then come and offer your gift. 25 Come to terms quickly with your accuser while you are going with him to court, lest your accuser hand you over to the judge, and the judge to the guard, and you be put in prison. 26Truly, I say to you, you will never get out until you have paid the last penny.

July 25, 10:18 pm | [comment link]
31. Tom Roberts wrote:

20-Tony
The ecclesiastical courts are unable to cite individuals in contempt, unlike secular courts. Ironic, isn’t it. This court essentially ordered the diocese to turn over the documents IF they wished to pursue the presentment. The diocese failed to comply, and the case was dismissed.
Now if a group (seven, I believe) members of the diocese want to bring presentment charges against the bishop who motivated his staff to falsely accuse Bollinger, then some recourse from the ecclesiastical courts can be sought. Otherwise, the order you cite is merely within the context of the Bollinger presentment and no further recourse is available to that court.
Most ecclesiastical court proceedings are based on judical consensus and common sense. Apparently, the diocesan prosecution here was short on the latter, so the judical consensus was that the presentment didn’t hold water. What that means for the diocese in terms of the competency of its executive leadership is not for that court to judicially pursue.

July 25, 11:28 pm | [comment link]
32. JonReinert wrote:

#31 Tom are you implying the charges were in effect frivolous?  If so there seems to be two things yet to be dealt with;
1.  The competence or otherwise of the diocesan officials.
2.  The implied defamation.
Jon R

July 26, 6:32 am | [comment link]
33. Tom Roberts wrote:

#32
No, but your #1 is a political issue to be decided by the Standing Committee of the diocese while #2 is a matter for the secular courts, not the church’s ecclesiastical courts. Ecclesiastical courts deal almost exclusively with clerical orders and whether any particular cleric is competent to be in those orders. Whether the diocese defamed Bollinger+ is neither here nor there, except insofar as it affects the general tenor of the proceedings and brings other evidence into question.

July 26, 7:47 am | [comment link]
34. Tom Roberts wrote:

FYI, the canons on ecclesiastical courts are found at
http://www.churchpublishing.org/general_convention/pdf_const_2006/Title_IV_EcclDiscipline.pdf

July 26, 7:54 am | [comment link]
35. Harvey wrote:

Wouldn’t 1,000 pages of paper start a beautiful fire.  Another thought comes to mind but I’ll clean up the phrase so the elves might let it through. 
If they can’t dazzle you with brilliance, they will try to baffle you with————.  All you old timers and quite a few young timers can insert the proper 8 letter word.

July 26, 8:48 am | [comment link]
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