THIS STORY HAS BEEN FORMATTED FOR EASY PRINTING

Judge asked to consider recusal

By Kathleen Burge, Globe Staff, 7/25/2002

awyers for the Archdiocese of Boston are asking the judge who will decide whether they have to pay a multimillion settlement for sexual abuse to forget everything she heard about the agreement during an April closed-door meeting in her chambers.

And if Superior Court Judge Constance M. Sweeney can't put it out of her mind, the lawyers say, she should recuse herself from the case.

After listening to evidence at a hearing that begins next Wednesday, Sweeney must decide whether to enforce the $15 million to $30 million agreement that was announced in March but abandoned two months later by the archdiocese.

The judge's memory of the informal April conference, which was neither public nor recorded, became an issue after lawyers who were there later disagreed about what had been said. At least one lawyer for the 86 alleged victims of former priest John J. Geoghan suggested that a lawyer for the church had characterized the settlement agreement as final.

Perhaps more troubling to the archdiocese, Sweeney later hinted that she believed a settlement had been reached and suggested that Geoghan's alleged victims who signed the agreement had ''the rug pulled out from under them.''

Sweeney is holding a hearing today on the church's motion to disregard her recollections of the April meeting, as well as several others. The archdiocese is also arguing it is not a party to the settlement agreement and should not be ordered to pay, if it is enforced. Lawyers for the alleged victims disagree, saying that Cardinal Bernard F. Law, one of the 17 defendants, represents the archdiocese.

At an open court hearing following the conference in her chambers, Sweeney said the agreement was in ''its final stages of signature,'' and added that Wilson Rogers II, a lawyer for the archdiocese, was traveling around the country garnering signatures, according to a transcript.

At a hearing a month later, Rogers told Sweeney that he had actually been in New York on personal business.

J. Owen Todd, Law's lawyer and one of the lawyers who is asking Sweeney to ignore her recollections of the closed conference, argued that - like any judge - she should only consider the evidence presented at the hearing.

''The Court ... may be tempted to invoke its own memory of what occurred in resolving the issues that this conflicting testimony may pose or rely upon opinions already formed as a result of the in-chambers conference,'' Todd and the church lawyers wrote in their motion.

They emphasized that they are only asking Sweeney to recuse herself if she finds it impossible to put aside her memory of the meeting.

''It's our position that whatever was said, it's irrelevant anyway,'' Todd said.

Judges cannot be forced to recuse themselves. They are only required to decide whether they can objectively consider the case before them. But their decisions can be appealed, and higher courts sometimes reverse decisions after finding that the judge did not decide the case fairly.

Mitchell Garabedian, a lawyer for the alleged victims, said yesterday the church lawyers seem to be asking for an ''unwarranted recusal'' by Sweeney. Simply because the meeting was not recorded does not mean Sweeney should act as if it never existed, Garabedian and another lawyer, William H. Gordon, argued. And, they added, ''what transpired'' at the meeting is relevant to the hearing next week.

Kathleen Burge can be reached at [email protected]

This story ran on page A17 of the Boston Globe on 7/25/2002.
© Copyright 2002 Globe Newspaper Company.