Betrayal of Justice Read online

  Ideas and theories were now popping into Zachary’s head. One he especially liked was called the agency by estoppel theory. Quite similar to apparent authority, the estoppel theory deals explicitly with the conduct of the victim. There are three elements necessary to establish the theory: First, the person dealing with the agent must do so with belief in the agent’s authority, and this belief must be reasonable. This burden is undoubtedly met in this case. Second, the belief must be generated by some act or neglect of the principal sought to be charged. A bit more complicated, but his burden could be met with the church’s knowledge of prior actions, failure to properly screen or supervise, or, simply, bad policy in sending priests on camping trips alone with the children. Third, the victim must be justified in relying on the agent’s apparent authority. These were children. Gerry was their priest. Who could disagree that these children were not justified in trusting their priest? Nobody!

  The more he thought, the more he liked the approach. While the implied agency could not exist contrary to the express intention of the alleged principal, it could spring from acts permitted by the principal over time through acquiescence.

  Zack finished with his agency and intentional acts theories. He developed several more theories, and one week after his meeting with Jennifer, he completed his final draft. The complaint was a seventeen-count masterpiece against Bartholomew, Costigan, Our Lady of the Lakes, the division director of the Detroit Division of the church, and the church. It contained the following allegations:

  Assault and battery by Father Gerry

  Intentional infliction of emotional distress by Father Gerry as to Kenny and Jake

  Intentional infliction of emotional distress by Father Gerry as to Jennifer

  Negligent assault and battery (The assault and battery was obviously a deliberate act; however, while the act was intended, Gerry did not foresee the resulting damages to the family; thus he was negligent in creating the result. Plaintiff attorneys used this theory often in an attempt to avoid intentional acts exclusions in liability insurance policies.)

  Negligent infliction of emotional distress by Gerry as to the boys

  Negligent infliction of emotional distress by Gerry as to Jennifer

  Respondeat superior—the acts occurred in the scope of Gerry’s employment with the church

  Apparent authority

  Agency by estoppel

  Gross negligence/misconduct by Gerry and by the church, which knew or, in the exercise of reasonable care, should have known of Gerry’s propensities toward pedophilia and did nothing to stop him

  Negligent screening of priests by the church

  Negligent training of priests by the church

  Negligent transferring of priests by the church when it knew or, with the exercise of reasonable care, should have known of their propensities toward pedophilia

  Failure by the church to warn its parishioner of the danger posed by Gerry

  Negligence of the church in covering up Gerry’s prior acts

  Negligent infliction of emotional distress by the church as to the boys

  Negligent infliction of emotional distress by the church as to Jennifer

  The complaint sought damages of $40 million. Zachary invited Jennifer over to the office to review the complaint. She was extremely pleased. The two agreed it would be filed at the end of the week in Wayne County Circuit Court. Even though the offending acts occurred in Oakland County, two of the defendants, the division director, and the Detroit Division resided in Wayne County. Oakland was the much more conservative of the two counties, and Wayne was notorious for substantial verdicts in personal injury cases. Zachary notified the local newspapers and all pertinent radio and television stations. He called a press conference at the home of his client, Jennifer Tracey, to announce the filing of a major multimillion-dollar lawsuit against a major religious institution. The dye had been cast. A long, tough road lay ahead. For Zachary, Jennifer, Kenny, and Jake, there was no turning back.

  Chapter Twenty

  “Blake’s called a press conference.”

  “What for?”

  “To announce the filing of a multimillion-dollar lawsuit against a ‘major religious institution.’”

  “Wonderful news. I thought you and Walsh had this under control.”

  “Yes, you told us this was settled.”

  “It was.”

  “Maybe you should have offered more money.”

  “Seriously? Blake thought he was fleecing us. He had no idea how much money was available to keep this confidential. The amount of money we offered had nothing to do with his decision to litigate. Besides, I don’t think Blake is behind the rejection of the offer.”

  “Who then?”

  “Jennifer Tracey. I’m certain. Blake was euphoric when he left Walsh’s office. He was going to recommend the money and confidentiality because confidentiality meant even more money. He thought the boys would prefer privacy. My guess is she refused the money and the terms.”

  “But why? It’s more money than she’s ever seen in her life.”

  “Because for her, money isn’t the issue. This is about revenge, payback, even worse, justice.” The Voice growled.

  “More than a million bucks is an awful lot of justice,” a member marveled.

  “For some people, maybe, apparently not for Jennifer Tracey. That makes her dangerous,” the Voice cautioned.

  “How so?”

  “This press conference must be Jennifer’s idea. She wants to expose Gerry to the whole world.”

  “Why? What does she care? Publicity is not going to help her boys.”

  “She doesn’t believe that. In the few conversations she has had with Rothenberg and Costigan that we have been able to monitor, she clearly wants to out Gerry as a criminal. Doing so, she believes, will help rid her sons of guilt feelings.”

  “That’s foolish. Why should they feel guilty?”

  “Why is not the question; it is, indeed, how they feel. Jennifer and Rothenberg believe the boys’ self-esteem will benefit from a public flogging of Gerry,” the Voice uttered, with mounting petulance.

  “Rothenberg? I thought he was working with us. Did he actually say this in monitored conversations?” The member was aghast.

  “No, he didn’t. However, Jennifer would never go this route without his blessing. He has to have told her about the effect a public trial would have on her kids.”

  “Then why haven’t we heard any of this on the recordings?” the member persisted.

  “Because conversations are being conducted elsewhere.”

  “But that would mean they know about the listening devices at the Tracey home and the doctor’s office.”

  “I’m afraid so,” the Voice presumed.

  “It would also mean Rothenberg is working with Jennifer,” another member concluded, now acutely aware of the gravity of the situation.

  “I’m afraid that is also true,” the Voice conceded.

  “Well, what are we going to do about it?”

  “What would you have me do?”

  “Replace Rothenberg with a different therapist?”

  “We can’t do that,” The Voice advised.

  “Why? We’re paying for the treatment. Aren’t we entitled?”

  “We might have been able to replace him early on, but not now. The boys are comfortable with Rothenberg and to change now would be too obvious.”

  “Screw the boys,” a member snapped.

  “Quite an interesting comment considering our circumstances. Sensitivity training, anyone?” The Voice admonished.

  “I didn’t mean it like that,” the embarrassed member apologized. “I care about all the kids. You know that. I wish we had better solutions to these disturbing events. I wish we could identify, treat, and control these predator priests. I want to root out these demons, so no other children suffer the same harm. On the other hand, I care about our institution and its wonderful humanitarian work around the world. The problems of two children can
’t be permitted to affect the overall great work the church is doing.”

  “Here, here,” the Voice mocked. “What’s your solution?”

  “I believe it is time for some aggressive action.”

  “What do you have in mind?” The Voice was intrigued.

  “Go on the attack. Hire the best public relations people money can buy and trumpet all the good things the church does. We have occasional issues with pedophilia in the clergy that we are aggressively working to eradicate. If a priest is accused of pedophilia, we suspend him, get him treatment, and make positive findings as to the truth or falsity of the allegations. That’s what we’ve done in this case.

  “We are a caring, giving, charitable, religious institution, and the good we do for society far outweighs the bad. A public spectacle like this deliberate attempt to embarrass the church for the isolated and previously unknown conduct of one rogue priest is unconscionable. It only serves to undermine our ability to do God’s work.

  “I’d arrange to have some reporters friendly to the church at the press conference. Ask Blake if he has any evidence to substantiate allegations the church is involved in some ‘cover-up’ here or somehow encourages pedophilia in its clergy. The answer will be ‘no.’ Demand that Blake publicly apologize to the church hierarchy if he is unable to sustain the charge. If the boys are truthful and Gerry is a pedophile, we are already providing and paying for the boys’ treatment. This course of action has been quite helpful, as Mrs. Tracey will attest. We will also get Gerry the treatment he needs. We are not monsters, and we resent being depicted in such a manner.”

  “I like that approach as long as we can deliver the message effectively,” a member remarked.

  “Leave that to me,” the Voice assured.

  “I still think we could eliminate one of the players without arousing too much suspicion,” a member guilefully suggested.

  “Who, for instance?” the Voice wondered.

  “The mother. She seems to be the driving force behind this. Without her, the whole issue would fizzle out.”

  “Too risky, in my judgment. Let’s try the public relations approach before we consider anything so drastic.”

  “I agree.”

  “So do I.”

  “Me, too.”

  “All in favor of this approach?”

  “Yes,” they assented in unison.

  “I’ll call my friends at the newspaper. There is one problem, however.”

  “What’s that?”

  “Aside from our humanitarian work, there’s not a word of truth in our proposed public position. If Blake uncovers the truth, the Coalition and, perhaps the church, are finished.”

  “Part two of this plan, then, is to make sure that never happens.”

  “How do we accomplish that?”

  “By any means necessary.”

  Chapter Twenty-One

  On Friday morning, in the lower level family room of the Tracey’s Farmington Hills tri-level, Zack and Jennifer were preparing for the Downtown press conference scheduled for later in the day. Jake and Kenny were sent to sleep over at Aunt Lynne’s house. They’d be in safe hands and have ample recreational options. Lynne, Jennifer’s sister, had four sons, ranging in age from eight to fifteen years old. Lynne and Jennifer’s boys were good buddies. Jennifer’s boys always welcomed a sleepover at Aunt Lynne’s, until the infamous camping trip. While the suggestion this time did not spark the usual excitement in her boys, Jake and Kenny did appear enthusiastic about the sleepover and the idea of quality time with their cousins.

  “Jenny, the boys would love to see Jake and Kenny. How are they doing?” Lynne wondered.

  “Reasonably well, all things considered,” Jennifer reflected.

  “Jen . . . I don’t mean to pry . . . but . . . what exactly happened with the priest?”

  “Lynne, I really don’t want to—”

  “Come on, Jenny. I don’t want to find out from the papers. What did that son-of-a-bitch do to my nephews?”

  Lynne’s motives weren’t totally pure. She wanted the gossip, but she was right. She should know before the general public, so Jennifer laid it all out for her. It wasn’t any easier this time.

  Lynne was floored. “Has this guy done this before?”

  “We don’t know. We think so. We’re hiring an investigator.”

  “I’ll bet he has, the scumbag. I suppose you’ve seen the light and given up this obsession you have with religion?” Lynne groused.

  “I am not obsessed, and religion has nothing to do with this. Father Jon has been very supportive and so have the families at Lakes.”

  “Jenny, if you weren’t religious, this never would have happened. I certainly wouldn’t send my kids on a camping trip with some pervert priest,” Lynne argued.

  “Lynne, ‘perverts,’ as you call them, come in all shapes, sizes, professions, and religions. This could have just as easily been your boys’ baseball coach or teacher,” Jennifer retorted.

  “But it wasn’t, was it? They won’t let these priests have normal relationships, and that attracts a unique element to the priesthood,” Lynne persisted.

  “Thank you, Dr. Lynne,” Jennifer chuckled.

  “You can be a smartass if you want, but you need to get a life away from the church,” Lynne insisted.

  “How much do you charge for this advice? I didn’t need a therapist; I could have hired my sister,” Jennifer mocked.

  Lynne softened. “Very funny. As long as I’m giving advice, do you really think going public with this thing is going to be good for the boys? Haven’t they been through enough? They’re going to take a lot of abuse once the details are disclosed.”

  “Yeah, I know. I’ve had second thoughts, but Dr. Rothenberg believes a public airing of Gerry’s crimes might actually help the boys. I’ve asked the boys, and that’s how they want to proceed.”

  “But you could talk them out of it. The boys take the lead from you. I don’t think I would embarrass them in public like this.”

  Jennifer was fed up with the conversation. “You’re my older sister, and I love you, but the last thing I need is a bunch of I-told-you-so’s or this-couldn’t-happen-to-me’s. I certainly don’t need you telling me what you would or wouldn’t do. I’m going to hang up now. Will you watch the kids or not?” she demanded.

  “You’re right, Jen, of course,” she capitulated. “I’m sorry. You’re going through hell, and I’m pontificating instead of being compassionate,” Lynne admitted.

  “Pontificating? Interesting choice of words for a nonbeliever,” Jennifer chuckled.

  They both laughed, and the tension that had developed between them evaporated as it often did during their childhood arguments. Their mom used to say, “One minute you’re mortal enemies, and the next you love each other.”

  “Maybe I’m closet religious.” Lynne laughed. “Of course I’ll watch the boys. Being with my boys will do them some good.”

  “Thanks, Lynne. I’m sorry if I seemed harsh.”

  “Nonsense, I deserved it.”

  “You’re right. You did.”

  Both ladies laughed again, uttered their goodbyes, and hung up. Jennifer wondered why the church was where she turned for help before her own sister. Perhaps, that was what Lynne was referring to. Perhaps . . .

  “Jenny?” Zack brought her back to the here and now from far away. “Where were you this time?”

  “I was replaying a phone conversation I had last night with my sister. Zack, I sought help from the church before my own sister. Isn’t that weird?”

  “I don’t think so, Jenny, unless your sister’s a therapist or something. I’d expect to get more help from someone who counsels others for a living, like Father Jon.”

  “I guess you’re right, but I sensed Lynne was somewhat hurt.”

  “Well, that’s her problem, and it’s a lot less of a problem than those you and your boys are facing.”

  “You’re right again.”

  Zack, as was his habit
lately, was making her feel better. She appreciated Lynne’s concern, but she’d handle the situation her own way.

  “Jenny? There you go again.” He snapped her out of it again. “We have a couple of hours before we head downtown. Do you want to go over it again?”

  “No.”

  “No?”

  “No!”

  “But, Jenny—”

  “Zack, we’ve been over and over this ‘dealing with the press’ business. I’m as ready as I’ll ever be.”

  “Just remember, if you don’t want to answer a question posed to you, look over to me—”

  “I know, Zack.” She interrupted him. “You’ll answer it for me.”

  “If they ask you about the boys—”

  “They’re going through hell, but they’re tough kids. They’re getting excellent therapy, and we’re very hopeful. Still, to have something like this happen at this time in their lives . . .”

  This time it was Zack who interrupted. “Coupled with the loss of their father and Father Bill . . .”

  “I know, Zachary! I know,” Jennifer snapped.

  “What’s wrong, Jenny?”

  “I don’t know, Zack. I guess I’m having second thoughts about this publicity thing.”

  “Why?”

  “I’m just not sure it’s right for the boys,” she moaned.

  “Dr. Rothenberg seems to think it may help the boys.”

  “Psychology is not an exact science, Zack. He doesn’t know it will help. He sets up scenarios and deals with the results. He doesn’t deal with prevention. He deals in solutions after the development of a problem,” she reasoned.

  “Thank you, Dr. Tracey.”

  “I said the same thing to my sister only I called her ‘Dr. Lynne’.”

  “Really?”

  “Yeah, she called me a smartass,” Jennifer teased.

  “I get the message. Jenny, it’s not too late to cancel the press conference,” Zack offered.

  “Yes, it is, Zack. I allowed the boys to decide, and they want to go forward. I trust Dr. Rothenberg’s judgment. I wish I had a crystal ball and knew things would turn out all right.”