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Abuse case lawyers dispute 14 charges

By Kathleen Burge, Globe Staff, 1/14/2003

awyers for two clergymen accused of abusing boys decades ago are arguing that the most serious criminal charges against the men should be thrown out because the alleged crimes took place before laws against them were enacted.

Attorney Timothy O'Neill filed a motion yesterday in Suffolk Superior Court asking a judge to throw out 14 sexual abuse charges against the Rev. James F. Talbot and Brother Fidelis DeBerardinis. The alleged crimes predate changes to state laws governing child abuse in 1974 and 1980, O'Neill argued.

Until 1974, the crime of raping a child under 16 applied only to girls, O'Neill wrote, and DeBerardinis is charged with raping boys. The same argument applies, he wrote, to assault with intent to rape a child. Also, O'Neill wrote, the crime of indecent assault and battery on a child over 14 was not added until 1980. Talbot faces five counts of that charge, even though the alleged abuse took place in the 1970s.

Prosecutors charged the men with more serious crimes than legally permissible, he wrote, because of their ''cynical pandering to the public sentiment created by the unprecedented and uncontrolled publicity which has saturated this community for many months.''

''I don't think it's any dispute that these [charges] are gone,'' O'Neill said in an interview yesterday. ''It's really unbelievable that [prosecutors] were so cavalier and careless as to not take into account statutory history.''

O'Neill's motion was filed just days after 14 men who say Talbot molested them at Boston College High School and elsewhere in the 1970s, 1980s, and 1990s agreed to a $5.2 million settlement of civil lawsuits filed against Talbot. In 1998, Talbot was removed from his position at Cheverus High School in Portland, Maine - where he went after leaving BC High - after an alleged victim came forward.

This latest legal conundrum underscores the difficulties that prosecutors have faced as they try to prosecute priests for crimes that allegedly happened decades ago. Last year, a judge threw out two charges of child rape against defrocked priest John J. Geoghan, only to restore them about six months later.

In the Geoghan case, the argument involved whether prosecutors had waited too long to bring charges. The issue is still pending before the state Appeals Court.

Suffolk County prosecutors said yesterday they were still reviewing O'Neill's motion and preparing their response.

''Regardless of the outcome of the defendants' motions, we are fully confident that the essence of the cases against the defendants will remain intact,'' said spokesman David Procopio.

Talbot and DeBerardinis have pleaded not guilty to all the charges and are free on bail.

Talbot, a former teacher and coach at BC High, was indicted in September on five counts of indecent assault and battery on a person 14 or over.

If O'Neill's argument succeeds, prosecutors could reduce those charges to simple assault and battery. But the penalties would be severely reduced as well: Indecent assault and battery on a child over 14 carries a maximum sentence of five years in state prison, while assault and battery, a misdemeanor, carries a maximum of 21/2 years in the house of correction.

Talbot has also been charged with one count of rape and one count of assault to rape. O'Neill's motion doesn't challenge those charges.

The alleged victims say Talbot molested them on Saturdays in the locker room at BC High during the 1970s. The Jesuit priest allegedly encouraged them to wrestle with him, then pinned them down and sexually assaulted them, said lawyers for the alleged victims.

DeBerardinis, a retired Franciscan brother, has been charged with 19 counts of molesting seven children in East Boston 30 years ago. DeBerardinis allegedly abused the victims while he was assigned to Our Lady of Mount Carmel Church from 1968 to 1973. O'Neill argued that nine of those charges - five charges of rape of a child under 16 and four charges of assault with intent to rape a child under 16 - should be dismissed because neither law applied to assaults on boys when the crimes allegedly occurred. Rape of a child carries a maximum sentence of life in prison.

Kathleen Burge can be reached at [email protected]

This story ran on page B4 of the Boston Globe on 1/14/2003.
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