Metropolitan News-Enterprise


Wednesday, December 4, 2002


Page 3


Court Upholds Subpoenas for Documents in Priest Sex Abuse Probes


By ROBERT GREENE, Staff Writer


This district’s Court of Appeal has upheld a grand jury’s power to subpoena records for three priests under investigation for child molestation, providing what District Attorney Steve Cooley called “important tools” to obtain evidence and leads in sex abuse cases.

The significance of Monday’s ruling by Div. Three goes beyond Cooley’s probe of the Roman Catholic Archdiocese and confirms the historic power of grand juries to demand documents using subpoenas duces tecum.

But its most immediate impact will likely be that the grand jury can review documents relating to the three priests that the archdiocese turned over to the court in June. Those records have remained sealed pending the priests’ attempts to have the subpoenas quashed for being beyond the grand jury’s power.

“This landmark decision by the state Court of Appeal has great potential for prosecutors in sex abuse cases involving clergy and in other areas as well,” Cooley said yesterday.

One of the three, retired priest Michael Baker, was arrested in September and charged with 13 counts of lewd acts upon a child under 14 and 16 counts of oral copulation with a minor. The acts allegedly took place at the rectory of St. Paul of God Church in La Mirada from 1976 to 1985.

Prosecutors have conceded that the statute of limitations has expired as to a second priest. Citing confidentiality of grand jury proceedings, district attorney spokeswoman Jane Robison declined to confirm whether an investigation is ongoing as to the third, identified by the Court of Appeal only as M.W.

The probe was launched in April.

After the archdiocese turned over the documents, the priests argued that grand juries in California have only the power vested in them by statute. The Penal Code specifically gives grand juries power to require witnesses to appear, they argued, but is silent on power to subpoena documentsómeaning there is no such power.

Los Angeles Superior Court Judge Dan Oki rejected the three priests’ motion to quash.

Presiding Justice Joan Dempsey Klein said Oki was right and the priests were wrong. In adopting the constitutions of 1849 and 1879, she said, California did nothing to supersede the longstanding common law powers that criminal grand juries have enjoyed in the Anglo-American tradition.

Even California statutes contemplate subpoena duces tecum power, Klein said, since a statutory recodification that fails to mention documents includes the express declaration that there was to be no substantive change in the law from earlier days, when the power was expressly set forth.

The court also rejected the priests’ assertion that such subpoenas, if valid at all, required the same good-cause showing necessary for subpoenas in the civil arena.

Code of Civil Procedure Sec. 1985(b) requires that an affidavit shall be served with a subpoena duces tecum showing good cause and materiality. Sec. 1987.5 makes service of such a subpoena invalid without the affidavit.

“[W]e conclude no affidavit should be required because the very purpose of a grand jury investigation would be vitiated if a subpoena duces tecum has to be justified without a good cause showing,” Klein said.

The case is Michael B. v. Superior Court, 02 S.O.S. 5871.


Copyright 2002, Metropolitan News Company