Metropolitan News-Enterprise


Friday, April 14, 2006


Page 1


C.A. Tosses Priest’s Conviction, Finds Prosecutorial Misconduct


By KENNETH OFGANG, Staff Writer/Appellate Courts


The Court of Appeal for this district yesterday reversed the conviction of a Roman Catholic priest on child molestation charges, saying the prosecutor engaged in misconduct in closing argument.

“A Catholic priest, like any other defendant, is entitled to a fair trial,” Justice Robert Mallano wrote for a divided panel. “Instead, defendant here got a trial in which the prosecutor in argument appealed to the jury’s passions, prejudices, and sympathy; alluded to facts outside the record; and expressed her personal belief in defendant’s guilt.”

Justice Miriam Vogel concurred in the opinion, while Justice Frances Rothschild argued in dissent that the prosecutor’s remarks did not affect the outcome of Fernando Lopez’s trial.

A Los Angeles Superior Court jury found Lopez, who was a parish priest in a low-income and predominantly Hispanic area of the city, guilty of eight sex offenses involving three boys, following a trial before Los Angeles Superior Court Judge Ruth Kwan.

Accusers’ Testimony

One witness, age 13 when he first met Lopez, testified that the priest molested him, either in Lopez’s car or at his residential quarters, on four occasions. Another said Lopez attacked him in a church office when he was 19 or 20, and the third alleged victim, the brother of a volunteer secretary at the parish, said that Lopez touched him inappropriately on three occasions, including at a church retreat and once in the church basement.

The three testified that they did not know each other. The priest admitted that two of his accusers had been in his car, even though church officials testified that he and others priests were told to avoid being alone with minors in cars, but denied that anything improper occurred.

As to the third accuser, Lopez said he had never met the man prior to the preliminary hearing.

After jurors convicted him on all eight counts, Lopez appealed. His court-appointed attorney, Mark Lenenberg of Simi Valley, argued that remarks during final argument by the prosecutor, Deputy District Attorney Darci Johnson, prejudiced the jury against the priest.

Prosecutor’s Comments

Among those were comments in which Johnson urged the jury not to give credence to any defense argument seeking to bolster Lopez because of his clerical status.

Johnson argued:

“And [counsel] will want you, as defendant think about the fact that priests do good works and they are motivated by good intentions. But we know that priests are human just like any other person. They commit sins as the defendant said, and they commit crimes, and they commit horrendous crimes.”

She continued:

“The defendant also revealed in direct examination...a general philosophy, for lack of a better word, that rules do not apply for him. He made it very clear that he was given a lot of training...about how to behave with minors here in Los Angeles. And we all know why those rules are in place. This is not a surprise to any of us that the Church has these rules.”

Mallano—an active member of the Roman Catholic Church who has served as an advocate before church tribunals hearing matrimonial cases—agreed that the remarks were improper and prejudicial.

“The prosecutor’s reference to ‘horrendous crimes’ committed by priests was not an allusion to some abstract or historical figure. Rather, given the almost daily news accounts of the scandal in the Catholic Church over pedophile priests, the jury was certain to think the prosecutor was referring to this scandal and suggesting that defendant played a part in it. Arguing guilt by association constitutes misconduct.”

It was also improper, Mallano went on to say, for Johnson to argue on rebuttal that “I don’t think [defense counsel] is mean or stupid. But I think his client is guilty.” That was an impermissible expression of the prosecutor’s personal opinion, rather than a comment on the evidence, the justice explained.

Nor was the error harmless, Mallano said, reasoning:

“Three minors testified against defendant, who denied the charges. There were no independent witnesses or any confession or material admissions. Simply counting three against one will not do.

“Appellate courts are the last resort against prosecutorial misconduct. We ought to be careful lest the harmless error rule swallow the principle that a defendant is entitled to a fair trial. Because defendant did not receive one, we must reverse.”

Rothschild argued in dissent that the comments cited by Mallano were not outrageous in the context of the argument as a whole, and that the cumulative effect of the testimony of the three victims was to trongly establish a pattern of criminal conduct on the part of the defendant.

Lenenberg told the MetNews he had not read the opinion, but that the rare reversal for prosecutorial misconduct was appropriate in this instance.

“The improper argument took on a prejudicial life of its own ,” he commented.

Johnson could not be reached for comment. The court directed the clerk to forward a copy of the opinion to the disciplinary arm of the State Bar, as required by statute.

Deputy Attorneys General Mary Sanchez and Michael A. Katz represented the state on appeal.

The case is People v. Lopez, B182877.


Copyright 2006, Metropolitan News Company