Betrayal of Justice

by Mark M Bello

  Zack stepped into the elevator. The doors closed. Zack let out the breath he’d been holding since he walked out of the conference room. Blake is back! Zack smiled. He would soon receive an almost four hundred-thousand-dollar fee for an interview, a letter, two phone calls, and a meeting. “I love this job,” Zack chortled. He hadn’t felt this good in three years. He couldn’t wait to get back and call Jennifer with the fantastic news.

  Chapter Eighteen

  Gerry Bartholomew sat alone in Lakes’ smallest chapel. A stone figure of the Son looked down upon him from the altar. Gerry meditated, gazing out at the adjacent courtyard. To him, celibacy meant being single, not having a wife or significant other. It had nothing to do with his sociopathic fondness for children.

  What he did with the children was beautiful. It was God’s will. We were created in His image to enjoy marvelous physical pleasure. My calling is to teach the children as many of those pleasures as possible. God demands this of me. I’ve done nothing wrong.

  Gerry was incapable of guilt or remorse. He was interested only in the physical pleasure of children. At every parish on his journey, he loved his kids, and they loved him back. The church hierarchy, pastors, bishops, administrators, and parents were the problem. They despised Gerry, and he despised them right back.

  How could people who never experienced such pure physical love attack his conduct? How could parents chastise his methods of education? God encouraged physical love as a beautiful experience, and made human bodies in His own image, for each of us to share. Would adults prefer to have their children grow up with no emotion, no experience, no understanding of what life and love had to offer? What did these people know?

  Of those who were once married, most were divorced. Why? Because most were emotionally crippled, taught at a young age that physical love was dirty, punished for loving each other. Why should anyone be surprised about a rising divorce and suicide rate among the faithful? The teachings of the church were based entirely on making parishioners feel guilty for what they enjoy.

  He hated them all. They didn’t understand his higher calling. Gerry was answerable only to God. God loved him and approved of his efforts with children. In fact, his first experiences with the children were encouraged by a visit from the Lord. In his vision, the Lord told him to “teach them diligently unto thy children.” He told him young boys needed encouragement near puberty to experience the physical pleasures their young bodies were capable of feeling. Shortly after that, Gerry ‘educated’ his first child, on a camping trip in Minneapolis. That was almost ten years and twenty-five teenagers ago. His thoughts were interrupted by a knock on his door. It was Father Jon.

  “Gerry, there are some Farmington Police Officers downstairs. They wish to talk to you,” Jon frowned.

  “Tell them I’m indisposed at the moment,” Gerry blustered.

  “I can’t do that, Gerry. They have a warrant for your arrest. I called Walsh. He advises you to exercise your right to remain silent. He’ll meet you at the Oakland County Jail and try to arrange for a quick arraignment and bail to minimize your incarceration.”

  Gerry rose and followed Jon down the stairs. Two uniformed officers put his hands behind his back, handcuffed him, and began to read him his rights. Gerry bowed his head and began to move his lips in silent prayer. The officers led him out of the church and into a waiting police car. A second team of officers handed Father Jon a search warrant and entered the rectory.

  ***

  Father Jon watched the police car disappear down Farmington Road. He could not identify his feelings. He was glad to have this cancer excised from his church. At the same time, he felt profound sorrow.

  What a troubled young man. Does he truly believe pedophilia is a priestly calling? He needs psychiatric help. What happened in his life to turn him into a depraved and callous individual? Did he become a priest because it afforded him fertile ground for young conquests? These questions might be answered during the upcoming criminal and civil trials.

  He wondered how Jennifer’s meeting with the lawyer went. Were she and the boys strong enough to endure the public spectacle that was to come? What did the future hold for them, his church, and for Gerry? He prayed all would come out of this experience intact. Would his prayers be answered?

  “Please God, guide this troubled family into better days . . .” His prayer was interrupted by a second set of officers who left Gerry’s room. They descended the stairs, carrying a small statue of a man and boy embracing. They carried boxes of pornographic magazines, a computer, and nude photographs of teenage boys. I didn’t even know he had a computer.

  The officers advised the search was not over. They’d be on the premises for most of the day. They demanded a list of families and individuals who were members of Lakes and asked Jon to highlight those who had teenage boys. Jon promised to compile and turn over a list in a couple of days. He couldn’t believe this went on in his parish, under his nose, without his knowledge. Neither could the police. They grilled him with questions about his own activities, his knowledge of Gerry’s actions, and his efforts to cover for Gerry. Jon almost called Walsh but decided against it. He wouldn’t be part of a cover-up. He’d answer their questions. He’d done nothing criminally wrong. His failure was stupidity. What is the penalty for assuming my parish and I were immune from this stuff? In my stubborn arrogance, these two beautiful boys were physically, emotionally, and religiously scarred for life. Their mother is an emotional wreck.

  What was the penalty for stupidity or blind loyalty? The police finished their questioning and left with their collected evidence. Father Jonathan Costigan was completely alone. He hung his head and entered the rectory. He sat on the couch, buried his head in his hands, and began to weep.

  Chapter Nineteen

  Blake called Jennifer Tracy and asked her to come by the office. He had ‘good news,’ he told her. They set the appointment for 3:00 p.m. At 2:55 p.m., Zack sat in his stuffy office, awaiting her arrival. He was surprised she wasn’t early. Good news this quick was a rarity in his business.

  In civil case legal wars, plaintiff attorneys and defense attorneys have the exact opposite agendas. On the plaintiff side, attorneys work on a contingency-fee basis, routinely one-third of the damages recovered. Upon settlement or verdict proceeds, the attorney is paid his out-of-pocket costs and one-third of the net proceeds. If there is no recovery, the client owes the attorney no fee. Technically, the client still owes the attorney for out-of-pocket costs, even when the case fails. Most attorneys never see a dime because the typical plaintiff can’t afford to pay the bill. It is rare to settle a large case at such an early stage, but Zack didn’t mind. They made a solid offer. Why risk a no-cause or work my ass off for the money?

  On the defense side, the attorney bills insurance companies and other deep-pocket defendants by the hour. Thus, it’s in their best interest to drag the case on, through endless pretrial motions, depositions, hearings, scene investigations, witness preparations, jury consulting, and so on. These large defense firms bill $350 to $750 per hour. For this reason, civil dockets are quite crowded in Southeastern Lower Michigan courtrooms. Plaintiff lawyers are vilified for filing ‘frivolous’ suits. But, the truth is, defense attorneys decide, based upon the reasonableness of their settlement offers, which cases are filed or tried. In addition, defense attorneys will not settle cases until they have sufficient billable hours in the case. What is sufficient depends upon a firm’s pedigree, overhead, and client’s deep pockets. How easily can the firm persuade a deep-pocket defendant to believe in its quest for justice, regardless of the hours necessary to achieve that justice?

  This was why Zack was ecstatic with the result. Tracy v. Bartholomew was a tough, David v. Goliath type, case. David, in this litigation scenario, was Zack and his clients— Brodman Longworth and the church were Goliath. The firm featured hundreds of attorneys, high overhead, and the ability to drag this case on for years. Before the settlement, Zack envisioned endless proceedings, mo
tions, and appeals. The church was a deep-pocket defendant, with the resources to delay resolution for years. All the characteristics of a battle royal were there, yet they offered $1.1 million—amazing! He still couldn’t believe the outcome. Jennifer will be so pleased.

  A knock on the door abruptly interrupted his pleasant thoughts. “Come in, please.”

  The door opened. In the hallway stood Jennifer. She wore a sheer, almost see-through, floral-patterned dress, which hugged the curves of her slender body. Her face was glowing. She’s a stunner! Zack shook himself to consciousness.

  “How are you, Jenny? Have a seat. Thank you for coming on such short notice. I have great news,” Zack gushed.

  “I’m getting along, Zack. Thanks for asking. I’m pleased you’re working on the case so quickly. What’s the great news?” His excitement was palpable, contagious. He seems much better today. He’s rather nice looking.

  “I’ve settled the case!” Zack beamed.

  “You’ve what?” Jennifer grunted. Zack was too emotionally charged to notice her dismay.

  “That’s right. It’s settled,” he boasted.

  “I thought the case couldn’t be settled without my permission,” she challenged.

  “That is a mere technicality, my dear.” Zack rambled, oblivious to her rancor.

  “Technicality?” Jennifer questioned.

  “I mean when you hear the terms of the settlement, you’ll be ecstatic!” Zack promised.

  Jennifer tried to relax. She tried to share his enthusiasm. He was euphoric, and it was contagious.

  “I’ve settled the case for one point one million dollars—four hundred thousand for each of the boys and two hundred thousand for you. And, get this, there’s another hundred thousand for keeping this quiet. Can you believe it? Am I good, or am I good? On top of all of this money, the boys can stay in treatment for as long as they need to, at church expense. And there are only two insignificant conditions.”

  “And what are those?” Jennifer seethed. For the first time, Zack noted her displeasure. She was unenthusiastic, raining on his parade.

  “I already mentioned confidentiality. We must also agree not to contest any plea bargain negotiated in the criminal case,” Zack reported, still elated. He was clueless about the coming storm.

  Jennifer paused. She shook from growing rage. “I don’t believe this, Zack. Your so-called settlement is completely unacceptable, absolutely out of the question,” she snarled.

  Zachary was nonplussed. She completely shut down his remarkable achievement. Instead of the jubilation he expected, Jennifer Tracy was livid.

  “How could you do this?” she demanded. “I gave you specific instructions when I retained you. I wanted a lawsuit filed in a very public manner. I told you I would never settle, and I was clear there would be no confidentiality clause. I also told you, in no uncertain terms: I will never approve any plea bargain that doesn’t include prison time. I will not permit this creep’s conviction to be concealed from the public.

  “Dammit, Zack! I told you my sons, and I never want anything like this to happen to another child, ever! How could you violate every condition we discussed when I retained you?”

  “But, Jennifer . . .” he staggered. “I thought you’d be pleased. This is an awful lot of money . . . ”

  “Damn it, Zack! This isn’t about money. It’s about justice and prevention, justice for my boys and those who came before them, and prevention for those who may come after. Your crap settlement does not alert the public and allows this animal to continue to violate children,” Jennifer raged. “I will not stand idly by for a few bucks and permit this to happen to another innocent child.”

  “This is a seven-figure result, Jenny. It’s hardly a few bucks,” Zack grumbled. His get-rich-quick dream was becoming a nightmare.

  “Zachary Blake, you are fired, sir,” Jennifer ordered. “Compile a bill for services rendered, and I’ll pay it. I have no further use for your service.”

  “Jenny, be reasonable. Let’s not be hasty. Let’s not be rash. I’m . . . I’m . . . sorry!” Zack pleaded, ashamed he so completely misread the situation.

  She was right to be angry. He did violate every condition she placed on the resolution of the case. He never thought she was serious. But she was, and his blunder was going to cost him the case of a lifetime. I can do this her way! If she wants the case to be public, then public it shall be! If she wants to turn down $1.1 million, I’ll get her $2 million—whatever she wants! I have to convince her!

  “Jenny, please! I’m truly sorry,” he implored. “I admit I misunderstood your feelings on this. I honestly thought, when you heard the numbers, you’d be pleased. I can do this your way. Besides, you’re the client. No lawsuit can be settled without your approval. The defense knows this!

  “I’ll prepare a lawsuit. I’ll call a press conference when it’s ready to be filed. I’ll refuse any offer that includes confidentiality, and I’ll refuse to cooperate with any plea bargain. I’ll hire a top-notch investigator, and we’ll get the goods on Gerry and the church. I’m good, Jenny. I’m a great lawyer. You know this—you know my work. Give me a chance, please!” Blake argued, fighting for his life. He was near tears.

  Jennifer softened, but her tone remained harsh. “And you’ll never agree to anything without consulting with me first?”

  “I didn’t do that this time, Jenny. I told them I needed to consult with you. I swear,” Zack pleaded, his demeanor almost juvenile.

  Jennifer assuaged and then admonished him. “Against my better judgment, I’ll reconsider. But we’re going to pursue this my way, mister, and if you cross me again, I’ll drop you like a hot potato. These are my precious children. I will not permit you to let them down!”

  “I won’t, Jennifer. I swear to God, I won’t,” He promised, with genuine remorse.

  “I take an oath to God very seriously, Counselor, especially in this case,” she taunted.

  “So do I, Jenny. So do I.”

  She paused to study him. Is he holding his breath? Oh, my God, he is! I should cut him some slack before he explodes. She capitulated.

  “Okay, you’re rehired.”

  Zack was relieved and pumped at the same time. Jenny’s unbridled anger and enthusiasm had a profound effect on him. He had trivialized the importance of the case, her kids, and the future of the church. Many lives hung in the balance, awaiting the outcome. This was the type of serious litigation the old Zack Blake used to thrive upon. Jennifer Tracey’s passion for justice ignited the spark of Zack’s competitive flame. He would be that Blake again, the kick-ass trial lawyer Blake. The church and that piece-of-shit priest are dead meat!

  ***

  Immediately after Jennifer left the office, Zack went to work. He attempted to structure a rough draft for this rather unique situation by using old complaints he filed in the past. He had minimal success. This complaint had to be prepared from scratch. He wasn’t surprised. How were most civil child molestation cases filed against institutional defendants?

  He pondered potential theories. Intentional torts were typically excluded from coverage in most commercial insurance policies. Still, he had to include a count for assault and battery. The liability of the church, the principal, was vicarious for the acts of Gerry, the agent. If there was no lawsuit against Gerry, there was no lawsuit against the church.

  Next, he tackled agency theories. The church and Lakes employed Gerry. Under Michigan law, they were Gerry’s principals, and he was their agent. Agency theories and principal liability for the conduct of agents were the keys to success in this case. The assault and battery case was a slam-dunk. It was worthless, however, because Gerry, unlike OJ, was not collectible. He swore an oath of poverty when he entered the priesthood. For this reason, the agency theories were even more vital, and Zack spent countless hours researching them.

  The doctrine of respondeat superior provides the act of an employee during his or her employment is legally the act of his or her employer. Mich
igan case law provides the standard is not merely that the church is the employing entity, but whether Gerry, the employee, was acting in the interests of the employer. While the existence of the agency was a jury question, Zack wasn’t worried much about establishing that. Gerry was an employee of the church, therefore, an agent. Zack was more concerned about the ‘interests of the employer’ question.

  He decided to plead the camping trip was in furtherance of a legitimate church function, namely parishioner camaraderie and priest-parishioner relations. As to the victim, the agent was acting in his employer’s interest. However, while employers can be held liable for the willful and wanton misconduct of their employees, their criminal acts outside the scope of the master’s business, intentionally or recklessly, do not create liability to the master.

  Next, Zack tackled the issue of apparent authority. This was the key issue in the case. If he could successfully argue apparent authority, the potential for a substantial verdict against the church rather than the priest was significantly enhanced. The crucial distinction between this theory and the others is it depended on the victims’ reliance. What was the reasonable belief of the person or persons—Kenny and Jake— when dealing with the agent? With apparent authority, a principal is responsible for the acts of its agent, not actually authorized, but traceable to the principal, if they are relied upon by the victims. This was where the boys’ ages came into play. If the church sent Gerry on these trips with children and the outings were church-sanctioned or sponsored, it was not unreasonable, especially in the minds of naïve children, to assume the church-sanctioned the actions of the priest. Further, in this case, Gerry injected God into his perversion, advising the boys God considered these acts to be beautiful and acceptable behavior in His eyes. The theory was viable, and Zack decided to base the case on this vital principle of law.