THIS STORY HAS BEEN FORMATTED FOR EASY PRINTING

Charges set aside against 2 clerics

By Kathleen Burge, Globe Staff, 2/5/2003

rosecutors have agreed to dismiss 14 charges against two clerics accused of molesting boys decades ago, acknowledging that the alleged crimes took place before the laws they were accused of breaking existed.

Prosecutors also asked a judge to throw out the remaining 10 charges against one of the men, Brother Fidelis DeBerardinis, because the grand jury which indicted him had not been told whether the boys, in every case, had consented to the sexual conduct, as required by the law at the time.

Superior Court Judge Peter Lauriat agreed to both requests.Before 1986, state law required prosecutors to prove that alleged victims of indecent assault and battery on a child under 14 did not consent. DeBerardinis allegedly abused the victims while he was assigned to Our Lady of Mount Carmel Church in East Boston between 1968 and 1973.

Prosecutors said they expect to bring new cases against the two men -- DeBerardinis and the Rev. James F. Talbot -- this time using the correct legal charges from the years of the alleged assaults. Some of the new charges that both men face could carry less prison time.

DeBerardinis -- all charges against him dropped -- walked out of court yesterday after Lauriat's ruling. He is scheduled to be arraigned tomorrow morning on some of the new charges.

Although Assistant District Attorney Audrey C. Mark requested an immediate arraignment after yesterday's hearing, Lauriat refused.

DeBerardinis, who had been free on bail, was in court yesterday, wearing a gray sweatshirt and pants. He declined to answer questions. Talbot, a former coach and teacher at Boston College High School who is accused of molesting young men during wrestling practice, was not in court. Both men had pleaded not guilty to all charges.

Timothy P. O'Neill, the lawyer for DeBerardinis and Talbot, who filed the motion asking that the charges be dismissed, was pleased. ''I think it's a total vindication of what we claimed in our motion,'' he said. ''It's fundamental constitutional law.''

DeBerardinis, a retired Franciscan brother, had been charged with 19 counts of molesting seven children 30 years ago. Prosecutors agreed to drop nine of those charges -- five counts of rape of a child under 16 and four of assault with intent to rape a child under 16 -- because neither law applied to assaults on boys when the crimes allegedly occurred.

They will now ask a grand jury to reindict DeBerardinis on 10 counts of indecent assault and battery on a child, a charge that did exist at the time of the alleged crimes. ''We felt ethically obligated to seek [dismissal] on those indictments,'' said David Procopio, spokesman for Suffolk County District Attorney Daniel F. Conley.

Talbot, who has also been free on bail, was indicted in September on five counts of indecent assault and battery on a person 14 or over. That was not a crime in Massachusetts until 1980.

The charges had stemmed from alleged abuse that took place in the 1970s. Prosecutors could reduce those charges to simple assault and battery.

Talbot has also been charged with one count of rape and one count of assault to rape, charges that stand.

Kathleen Burge can be reached at [email protected].

This story ran on page B5 of the Boston Globe on 2/5/2003.
© Copyright 2003 Globe Newspaper Company.