1 1 STATE OF MINNESOTA 2 COUNTY OF RAMSEY IN DISTRICT COURT SECOND JUDICIAL DISTRICT 3 4 - - - - - - - - - - - - - - - - - - - - - - 5 DOE 1, 6 7 8 9 10 11 Plaintiff, vs. ARCHDIOCESE OF ST. PAUL AND MINNEAPOLIS, DIOCESE OF WINONA and THOMAS ADAMSON, Defendants. - - - - - - - - - - - - - - - - - - - - - - 12 13 Videotape deposition of ANDREW 14 EISENZIMMER, taken pursuant to Notice of 15 Taking Deposition, and taken before Gary W. 16 Hermes, a Notary Public in and for the County 17 of Ramsey, State of Minnesota, on the 6th day 18 of May, 2014, at 366 Jackson Street, St. Paul, 19 Minnesota, commencing at approximately 10:01 20 o'clock a.m. 21 22 23 24 25 AFFILIATED COURT REPORTERS 2935 OLD HIGHWAY 8 ST. PAUL, MN 55113 (612)338-4348 2 1 APPEARANCES: 2 JEFFREY R. ANDERSON, ESQ., MICHAEL G. 3 FINNEGAN, ESQ., Attorneys at Law, 366 Jackson 4 Street, Suite 100, St. Paul, Minnesota 55101, 5 appeared for Plaintiff. 6 DANIEL A. HAWS, ESQ., Attorney at 7 Law, 30 East 7th Street, Suite 3200, St. Paul, 8 Minnesota 55101, appeared for Archdiocese of 9 St. Paul and Minneapolis. 10 THOMAS B. WIESER, ESQ., Attorney at 11 Law, 2200 Bremer Tower, 445 Minnesota Street, 12 St. Paul, Minnesota 55101, appeared for 13 Archdiocese of St. Paul and Minneapolis. 14 THOMAS R. BRAUN, ESQ., Attorney at 15 Law, 117 East Center Street, Rochester, 16 Minnesota 55904, appeared for Diocese of 17 Winona. 18 19 ALSO PRESENT: 20 Paul Kinsella, videographer 21 22 23 24 25 * * * 3 1 2 I N D E X EXAMINATION BY MR. ANDERSON................4 3 4 BEGINNING OF TAPE 1........................4 5 BEGINNING OF TAPE 2.......................58 6 BEGINNING OF TAPE 3......................108 7 BEGINNING OF TAPE 4......................222 8 9 10 DEPOSITION EXHIBIT 99....................265 11 DEPOSITION EXHIBIT 175...................272 12 DEPOSITION EXHIBIT 176...................274 13 14 15 16 17 18 19 20 21 22 23 24 25 * * * 4 1 P R O C E E D I N G S 2 * * * 3 MR. KINSELLA: Today's date is May 4 6, 2014. 5 videotape deposition of Andrew Eisenzimmer. 6 Will counsel please identify themselves for 7 the video record? 8 The time is 10:01 a.m. MR. ANDERSON: 9 This is the For the plaintiff, Jeff Anderson. 10 MR. FINNEGAN: 11 For the plaintiff, Mike Finnegan. 12 MR. HAWS: 13 Dan Haws for the archdiocese. 14 MR. BRAUN: 15 Thomas Braun on behalf of the Diocese of Winona. 16 MR. WIESER: 17 Tom Wieser on behalf of the archdiocese. 18 MR. KINSELLA: 19 Will the reporter please swear the witness? 20 ANDREW EISENIMMER, 21 called as a witness, being first duly sworn, 22 was examined and testified as follows: 23 EXAMINATION 24 25 BY MR. ANDERSON: Q. Good morning. 5 1 A. Good morning. 2 Q. Would you please state your full name for the 3 record? 4 A. Andrew Eisenzimmer. 5 Q. What is your current association or 6 affiliation with the Archdiocese of St. Paul 7 and Minneapolis? 8 A. 9 I'm currently employed by the archdiocese on a part-time basis as a consultant. 10 Q. And to whom do you answer as a consultant? 11 A. Largely to Mr. Wieser as their outside counsel 12 and to the current chancellor for civil 13 affairs. 14 Q. And that is? 15 A. Joe Kueppers, Joseph Kueppers. 16 Q. You were the chancellor for civil affairs from 17 18 November of 2005 to October 2012? A. 19 20 Actually, it would have been through December of 2012. Q. 21 And have you, then, been a consultant since December of 2012? 22 A. Correct. 23 Q. What do you do as a consultant? 24 A. Well, at the moment, it's largely consulting 25 with respect to outstanding litigation that 6 1 involves the archdiocese. 2 Q. Do you get called in if there's a crisis? 3 A. Typically not, but I don't know that there's 4 been a crisis per se. 5 year-and-a-half I've been in the Chancery a 6 couple of times for meetings. 7 Q. 8 I think in the last Were you called in to deal with a problem involving Wehmeyer -- 9 A. Well -- 10 Q. -- after you were retired? 11 A. No. 12 Q. Okay. Are you responsible for dealing as a 13 consultant primarily with issues pertaining to 14 handling sexual abuse issues? 15 A. 16 17 That's the predominant litigation involving the archdiocese at the moment, yes. Q. Have you, yourself, ever reported suspicions 18 of childhood sexual abuse by a cleric to any 19 law enforcement agency? 20 A. Yes. 21 Q. How many times? 22 A. Involving a cleric? 23 24 25 I -- there's been at least a few, I believe. Q. Do you consider yourself currently or as chancellor from 2005 to December of 2012 to be 7 1 or to have been a mandatory reporter? 2 A. No. 3 Q. Have you ever considered yourself to be a 4 mandatory reporter? 5 A. No. 6 Q. The few times that you have made reports to 7 law enforcement of suspicions of childhood 8 sexual abuse by clerics, I want to ask you 9 about that. 10 A. When have you done that? Well, I would be talking about that period of 11 time when I was employed as the chancellor for 12 civil affairs between November 7, 2005, and 13 December 31, 2012. 14 Q. 15 16 And tell me, then, the first time in that time frame in which you made a report. A. Well, I'm not sure I remember exactly the 17 chronological order, but I'm guessing the 18 first one I would have been involved with was 19 relating to a Father Michael Keating, but when 20 you talk about report, I don't know that we 21 treated Father Keating -- the report of Father 22 Keating matter to the police as a mandated 23 report. 24 opposed to anything that would be considered 25 mandated under the statute. Sometimes we report voluntarily as 8 1 Q. 2 What do you consider to be a mandated report versus a non-mandated report? 3 A. Well -- 4 Q. What is a mandated report, as you understand 5 6 it? A. If you look at Minnesota statute 626.556, you 7 recognize that only certain professionals and 8 certain clergy are considered mandated 9 reporters. And if you look at clergy 10 specifically, they're not mandated reporters 11 if the information came to them that's 12 otherwise privileged under Minnesota statutes 13 595.02. 14 Q. 15 In addition, the -- That's in the priest/penitent privilege, basically? 16 A. Correct. 17 Q. Okay. 18 A. And the statute also specifies that reports 19 are mandated if they're currently occurring or 20 have occurred within the preceding three 21 years. 22 would not be considered a mandated reporting 23 obligation situation. 24 25 Q. So anything outside that time frame So in the case of Keating, did you not consider that to have been a required report 9 1 2 by statute? A. 3 4 Correct, and, again, largely because of the time frame. Q. And it was because it was alleged to have 5 occurred more than three years before the 6 information was received by you? 7 A. Correct. 8 Q. How long before -- when did you receive the 9 information that caused you to be suspicious 10 of childhood sexual abuse? 11 MR. HAWS: 12 MR. ANDERSON: 13 A. By Keating? Yes. I think I learned of that almost from the time 14 I walked into the Chancery just about. 15 shortly after I started in November of 2005. 16 BY MR. ANDERSON: 17 Q. 18 19 And from whom did you learn that he was suspected? A. 20 I think I first heard of that from Father Jeff Huard. 21 Q. And what did Father Huard tell you? 22 A. I think he largely described his 23 It was as having had some instances 24 with Father Keating prior to Father Keating's 25 ordination as a priest where was now 10 1 describing some contact with Father Keating as 2 sexual in nature. 3 Q. So she was describing -- he was describing to 4 you that he understood it to be sexual contact 5 between Keating and her as a minor, correct? 6 A. Correct. Although, it was a little confusing 7 because Father Huard said that her story had 8 changed from the time she had first spoken to 9 him to some later times in terms of the manner 10 in which she was describing what had occurred. 11 Q. 12 13 abuse of a minor by Father Keating, correct? A. 14 15 But it was, nonetheless, suspicious of sexual Well, in the fairest sense of -- of that description, yes. Q. Okay. And did you take any action responsive 16 to what Father Huard told you about the 17 information he had concerning the abuse by 18 Keating, the alleged abuse by Keating of the 19 minor? 20 A. Well, I think originally Father Huard was, if 21 I recall correctly, was seeking to contact 22 Father McDonough to -- to discuss that. 23 -- if I recall correctly, I don't think Father 24 McDonough was available and that's how he 25 ended up talking with me. And I By I arranged to 11 1 get ahold of Father McDonough right away to 2 get some direction from him in terms of what 3 he wanted to do with that situation. 4 Q. In terms of the "he," you mean what Father 5 McDonough wanted to do as the then vicar 6 general? 7 A. Yes, correct. 8 Q. Did you consider that to be at that time 9 McDonough's primary responsibility, versus 10 11 yours, to deal with it? A. Well, since I was rather new at the job, that 12 wasn't necessarily very clear. 13 all of us in the Chancery recognized that we 14 had obligations to respond when we learned of 15 some kind of misconduct. 16 situation, it was made more complex by the 17 fact that the instances that were being 18 described had occurred prior to the ordination 19 of -- of Father Keating. 20 of Father McDonough as quickly as I could to 21 say, you know, "What do you want to do here? 22 What" -- you know, "What options do we want to 23 discuss and what action do we want to take?" 24 25 Q. But I think In this particular And so I got ahold In terms of protecting minors and the mandatory reporting statute, however, it 12 1 really doesn't draw the distinction between 2 pre-seminary, post-seminary, cleric, non- 3 cleric, does it? 4 A. Correct. But as I noted earlier, this was 5 outside of the mandatory reporting period, so, 6 you know, there was that consideration. 7 in terms of protecting children, it's helpful 8 to make sure that there is not an instance 9 where the conduct can be repeated. 10 Q. But In your view, when you say it was outside the 11 mandatory reporting period, how long ago had 12 the alleged abuse occurred before you received 13 the information from Father Huard that it may 14 have occurred? 15 A. And as I sit here today, I don't recall how 16 much earlier the events in question had 17 occurred. 18 Q. Well, you're asserting, however, that it must 19 have been more than three years before you 20 received it, otherwise, you would have -- it 21 would have been a mandated report, correct? 22 A. Well, I didn't view myself and never have as a 23 mandated reporter. But certainly Father Huard 24 was potentially a mandated reporter as a 25 member of the clergy, although it wasn't clear 13 1 at that point in time whether his conversation 2 with 3 not, so -- but, ultimately, in the discussions 4 with Father McDonough, we decided that the 5 best course of action was to report that to 6 police authorities. 7 Q. was considered privileged or Well, first let's get the privilege settled. 8 If it's a priest/penitent privilege, protected 9 by statute, that means confidential, Father 10 11 Huard cannot share that with you, correct? A. Well, yeah. I mean, he was not suggesting 12 that there was any privilege that existed 13 there, right. 14 Q. 15 Right. Let's just get that correct. So we don't have a privilege issue there? 16 A. Right. 17 Q. So my question to you is, when did Father 18 19 Huard share this information with you? A. 20 21 Well, again, I -- I mean, it was sometime either November or December 2005, I believe. Q. Okay. And did you make any memorandum or 22 recording of what he told you he had 23 understood Keating had done to the girl? 24 25 A. I don't know that I did, but I may have prepared a memorandum to someone that would 14 1 have detailed at least some of that 2 information. 3 Q. Today you have no recollection of having 4 recorded anything in connection with that 5 conversation? 6 A. You know, I -- I'm sure -- I have a 7 recollection of I would have taken notes and 8 those kinds of things, whether I then 9 memorialized that in a memorandum, I don't 10 11 know. Q. When you took notes as the chancellor such as 12 you just referred, what would have happened to 13 those notes and what file would they have been 14 put in and retained? 15 A. Well, typically, I would not retain 16 handwritten notes. 17 just scratching of highlighted words or 18 something like that, which oftentimes would be 19 indecipherable at a later point. 20 what I would do, or at least what I developed 21 as a practice in that office was to, then, 22 draft a written memorandum if it was something 23 that needed to be memorialized. 24 25 Q. Usually those would be Normally And as you testified today, you don't actually recall if you recorded anything, however -- 15 1 A. I don't. 2 Q. -- is that correct? 3 A. And at times it's also possible that I would 4 have memorialized things of that nature 5 perhaps in an e-mail as well as opposed to a 6 mem -- a memorandum. 7 Q. And so as best you can recall today, then, how 8 long before you got the information from Huard 9 concerning Keating's conduct towards the girl 10 11 did you believe it had occurred? A. I don't re -- I don't recall as I sit here how 12 long ago -- how long prior to my talking with 13 Father Huard the -- the events had occurred. 14 Q. And you told me, I think, that you did not 15 consider the information given you -- you 16 considered it to have been suspicious of 17 sexual abuse, but not mandated as a report, is 18 that correct? 19 A. I'm not sure if I'm following you, but the 20 fair reading of what Father Huard was 21 describing was sexual abuse. 22 Q. Yes. 23 A. But I didn't view it as falling within the 24 statutory language to require mandated 25 reporting. 16 1 Q. Did you communicate that to Father McDonough? 2 A. I don't recall that I did. I know we 3 certainly would have discussed the idea of 4 reporting it to the police. 5 Q. And was a report made to the police? 6 A. Yes. 7 Q. By whom? 8 A. Me. 9 Q. How long after Father Huard gave you the 10 11 information was the report made to the police? A. Yeah, again, I don't recall exactly how long. 12 And there was some problem because there was 13 some confusion where the family lived at the 14 time, so we reported it to one police 15 department, who then did some investigation 16 and found out it was actually under the 17 jurisdiction of another one, and I think they 18 actually referred it to the appropriate 19 jurisdiction. 20 Q. So how long after you received the information 21 from Huard did you first make the effort to 22 report to any law enforcement agency? 23 A. I -- I don't know. 24 amount of time. 25 days. I -- I don't recall the I mean, I think it was just 17 1 Q. 2 3 Do you know if you made any record of when the report was actually made? A. Again, I -- I -- there's a possibility that an 4 e-mail or a memorandum exists about when that 5 was made, but I -- as I sit here, I don't 6 recall that. 7 Q. And when you said you had a practice to -- you 8 may have made notes of what Father Huard told 9 you, did you make notes of having made a 10 11 report to law enforcement? A. Again, I don't know if I made notes or if I 12 would have memorialized that in a memorandum 13 or an e-mail. 14 something like that I would create something 15 to -- to inform the vicar general, the 16 archbishop or whoever else would need to be 17 informed about what action steps I would -- I 18 had taken. 19 Q. 20 21 Normally I -- normally When you said it was your practice to throw away notes, why would you do that? A. Well, again, they were really just a quick, 22 you know, couple of key words or something 23 like that. 24 necessarily follow or understand. 25 more to help me put it in a form that others It isn't something you could It would be 18 1 2 could follow and understand. Q. Well, as a chancellor for civil affairs and 3 given your history in this area, wasn't it 4 also -- weren't you also aware that when you 5 actually received the information that may 6 have triggered a report is important? 7 A. Oh, absolutely. And that's why I would 8 normally, then, memorialize that in a -- in a 9 fashion that then could be placed in a file to 10 -- to memorialize what I had done on what 11 particular date and -- and what action steps 12 had been taken. 13 Q. Beyond having made -- after you received the 14 information from Father Huard, you referred it 15 to Kevin McDonough because he was the vicar 16 general and the one charged by the archbishop 17 to basically be handling sexual abuse 18 allegations, correct? 19 A. Correct. And -- and let me correct something 20 now that I'm recalling better the memory of 21 that event. 22 from Father Huard. 23 originally heard from Father Andrew Cousins at 24 some point, who was relating this stuff that 25 he had gotten from Father Huard. I think originally I didn't hear I think I actually And if I 19 1 recall correctly, because of Father Huard's 2 relationship with the young woman, he want -- 3 he wanted to step out of his leadership role 4 with the -- I can't remember the servants of 5 whatever that group was that they all belonged 6 to, I can't remember the name of it. 7 Q. Companions of Christ? 8 A. Companions of Christ. 9 Q. Yeah. 10 A. And so I think he asked Father Cousins to 11 actually be in touch with me, so I think the 12 information I got was probably even secondhand 13 from Father Cousins. 14 Q. In any case -- 15 A. I ultimately did talk to Father Huard. 16 Q. In any case, it was that information from 17 Father Cousins and/or Huard that it was a 18 report of suspicions of sexual abuse of the 19 girl, correct? 20 A. Correct. 21 Q. Okay. And if I'm hearing you correctly, you 22 may have made notes, but you don't recall 23 today whether you did or not of the 24 conversation you had with Cousins and/or 25 Huard, correct? 20 1 A. Correct. 2 Q. And was it a routine practice for you to 3 memorialize information like -- received by 4 you like this? 5 A. Well, as I said, these -- these events were 6 unfolding within days or certainly a couple of 7 weeks of my starting that position, but 8 certainly as time went on, that was the 9 practice that I had was to do something, and 10 then if it was important that we needed to 11 keep a record of that, I would, then, put it 12 in either a memorandum or an e-mail of some 13 sort. 14 2005, I don't think Father McDonough was using 15 e-mail at that time, so more than likely I 16 would have done something in the form of a 17 memorandum as opposed to an e-mail to him. 18 Q. 19 20 At the time we're talking about in late Would that have been copied to the archbishop, it would have then been Flynn? A. If it was copied to the archbishop, it would 21 have been Archbishop Flynn. 22 him, I would not have a recollection at this 23 time. 24 25 Q. Whether I copied In any case, you do recall having turned it over to Father McDonough, correct? 21 1 A. Well, I wouldn't say turned it over to him. I 2 -- I took it to him for some direction. 3 did he want to do? 4 There's a, you know, variety of issues that 5 needed to be addressed and so, he's the person 6 I would take that work direction from. 7 both the vicar general, in essence, the chief 8 of staff, he's also the moderator of the 9 curia, which means he's responsible for the How did he want to do it? 10 archbishop's curial staff. 11 the curial staff. 12 Q. 13 What He's I was a member of Well, this is a report of sexual abuse -possible sexual abuse of a minor? 14 A. Correct. 15 Q. Who, if any, is charged with investigating 16 17 that at that time? A. Well, clearly I think it's up to Father 18 McDonough to decide, you know, what that -- 19 you know, what should be done in terms of any 20 investigation of it at that time. 21 Q. Do you recall what information you actually 22 gave to Father McDonough when you initially 23 imparted it to him? 24 25 A. I think I probably would have shared with him virtually everything I would have gotten from 22 1 either Father Huard or Father Cousins. 2 Q. And what happened? 3 A. Father McDonough and I decided it would be 4 appropriate to report it to the police 5 authorities. 6 of Father Keating, I think Father McDonough 7 took that over, I didn't have any 8 responsibility for those decisions. 9 Q. And then relative to the status And so did you have any other involvement in 10 the Keating matter after having discussed it 11 with McDonough and made the decision with him 12 to report? 13 A. Well, I think there was a number of occasions 14 that I was dealing with the police. And then 15 there was this question about who's -- who had 16 the jurisdiction, so that was a few things. 17 Ultimately, I was actually talking, I think, 18 with the family themselves. 19 the archbishop decided to refer the matter to 20 the clergy review board to help him ascertain 21 the credibility of the allegations or the 22 substance of the allegations, and part of my 23 job was to serve as staff liaison to the 24 clergy review board, so I would have been 25 involved at that point in time as well. And, ultimately, 23 1 Q. Right. I'm not going to use the name of the 2 girl, but do you remember the name of the 3 girl? 4 A. I don't at this point. 5 Q. You don't need to state it. 6 A. Yeah, I -- yeah. 7 Q. You did mention that you did interview some of 8 the family members. 9 interview the girl who he was alleged to have 10 11 Did you actually abused? A. Well, I was present when she spoke to the 12 clergy review board. 13 talked with her directly. 14 videotape that she had prepared. 15 Q. 16 17 I don't know that I I did view a And as you testify today, you don't recall actually having interviewed her? A. I'm certain I would have not asked her 18 specifics about the events in question. 19 know, I didn't question her, I didn't 20 interrogate her, I would not have had any 21 conversation of that nature with her. 22 Q. 23 You did mention that you interviewed some family members, however. And what -- 24 A. Well, I think -- 25 Q. -- purpose did you do that? You 24 1 A. And again it wouldn't have been -- it would 2 have been just in terms of what are we doing, 3 the police are involved, et cetera, et cetera, 4 it wasn't trying to get further information or 5 any interrogation kind of stuff. 6 of what's -- what's the status, what's 7 happening, et cetera, et cetera. 8 Q. 9 It was more So was your purpose in contacting the family members to report the status of the 10 archdiocese's investigation and what was going 11 to be done or what? 12 A. I think as time went on, it was more them 13 contacting me saying, "What is the archdiocese 14 doing?" 15 Greta Sawyer, who was the director of advocacy 16 and the victims assistance coordinator, so I 17 think largely they were dealing with her, but 18 at times I would get a call from the young 19 lady's father inquiring about what we were 20 doing and what the status was. 21 point in time they learned that the matter had 22 gone to the clergy review board, and so I 23 think they were anxious to find out, you know, 24 when they would have an opportunity to meet 25 with the clergy review board and set up those I think they were also working with And at some 25 1 2 kinds of things. Q. So there was -- did you interview Father 3 Keating to find out his version of the sexual 4 abuse allegations? 5 A. I did not interview Father Keating. Again, I 6 was present, I believe, when he spoke to the 7 clergy review board and discussed that. 8 Q. But before he appeared before the clergy 9 review board where you were present, do you 10 know if anybody ever asked Keating from the 11 archdiocese if he had abused this girl? 12 A. 13 I don't know what the police might have asked him, you know, whether he spoke to the police. 14 Q. From the archdiocese. 15 A. Yeah, I -- I -- I don't know that. I mean, I 16 became aware in some fashion that he was 17 denying that he had had any sexual contact 18 with her, but that's all I learned. 19 didn't learn that from him until he actually 20 spoke to the review board. 21 Q. And I You did do some investigation, however, and 22 made an effort to contact some of these other 23 potential victims of Keating that had been 24 mentioned as potential victims, did you not? 25 A. There was one woman that there was a 26 1 suggestion that he may have been involved with 2 in some fashion that lived in Italy, so I 3 tried to contact her. 4 Q. 5 And you did contact her in some manner, did you not? 6 A. By e-mail, I did. 7 Q. And you asked her if she had been sexually 8 9 abused by Keating, did you not? A. Well, yeah, she -- she sent me a message, 10 asking me what -- I wanted to talk with her on 11 the telephone. 12 what I was inquiring about and so I sent her a 13 message back, I think, telling her that I -- I 14 wanted to find out about the nature of her 15 relationship with Father Keating and whether 16 there was anything inappropriate about that 17 relationship. 18 Q. She sent me a message asking Well, did it occur to you, given your 19 experience in this area, that sending an 20 e-mail to a stranger, you being an official, 21 then, of the archdiocese, is not going to open 22 her up to actually invite her to really tell 23 the truth about what happened to her? 24 25 A. Well, I didn't want to speculate about that. I mean, what I want -- what I wanted to do was 27 1 to talk with her and see if we could arrange 2 for somebody to speak with her. 3 was in Italy, I didn't know if she spoke 4 English or how well she spoke English, so I, 5 you know, initially was trying to get some 6 contact with her so we could get further 7 information. 8 Q. 9 I mean, she She did respond to the e-mail, though, and in English -- 10 A. She did. 11 Q. -- did she not? 12 A. She did. 13 Q. So that told you she spoke English? 14 A. I -- I had the sense that she did, yes. 15 Q. And then did you after -- after she responded 16 to your e-mail, did you make any effort to 17 actually interview her to make her feel safe, 18 to make her feel like she could open up, make 19 her feel like there wouldn't be retaliation, 20 to make her feel like, you know, she can tell 21 you what really happened to her? 22 A. 23 After I got her response, I had no further contact with her. 24 Q. Why not? 25 A. I -- it was just -- by then I think the matter 28 1 was being referred to the clergy review board 2 and it was gonna be up to them to decide what 3 they wanted to do. 4 Q. You reported to the clergy review board, did 5 you not, your interactions with the girl in 6 Italy? 7 A. I assume I did, yes. 8 Q. And in her e-mail responsive to the one you 9 sent to her, she denied having -- denied that 10 Keating had had any inappropriate sexual 11 contact or abuse of her, correct? 12 A. 13 I think that's a fair reading of her response, yes. 14 Q. And that went to the board, did it not? 15 A. I assume it did. 16 Q. And the board ultimately found that the 17 allegations that had been made by -- we'll 18 call her Doe -- what's -- 19 MR. FINNEGAN: 20 Twenty. BY MR. ANDERSON: 21 Q. We're going to call her Doe 20 -- 22 A. Okay. 23 Q. -- because she brought suit -- 24 A. Sure. 25 Q. -- against Keating. Did you know that? 29 1 A. I knew that. 2 Q. We're going to call her Doe 20. You're aware 3 that the review board ultimately did find that 4 it wasn't -- the claim she had made was not 5 substantiated? 6 A. 7 8 their decision -- determination. Q. 9 So Keating was the first that you had made any report to law enforcement concerning. 10 11 I think that's a fair characterization of Who would have been the next? A. I'm assuming the next one would have -- would 12 have either been Father Gerry Grieman or 13 Father Freddy Montero, although technically 14 Father McDonough was the one that reported 15 Father Montero to the police authorities. 16 Q. Tell me about Father Gerry Grieman. When did 17 you get information that caused you to believe 18 that a report was appropriate? 19 A. 20 I don't know exactly when that information came. 21 Q. After Keating? 22 A. It -- I'm pretty certain it was after Keating 23 because Keating happened almost simultaneous 24 with my coming into the office and Father 25 Grieman was at some later point. 30 1 Q. And what was the source of the information? 2 And if you don't want to use the name, we'll 3 use the Doe list here. 4 A. Yeah. No. I -- the source of the 5 information, I -- I learned about it from 6 Greta Sawyer, who in turn had gotten, I think, 7 an e-mail from this individual who lived out 8 of the country. 9 Q. 10 Do you remember the name of the individual? I'm not going to ask -- 11 A. I don't remember the name. 12 Q. Okay. 13 14 And what did you learn from Greta Sawyer about what had happened or what was -A. Well, I think Greta actually shared his e-mail 15 with me, and so I think virtually everything I 16 learned initially was in that e-mail. 17 Q. 18 19 And what do you recall about this, what had been claimed to have happened? A. If -- if I recall it, he was doing something 20 like yoga with a yoga master, like some yoga 21 training with a yoga master, and the yoga 22 master had told him, "The way you hold your 23 body, you must have been sexually abused." 24 And he said that subsequent to that, he began 25 to recover some memories that he might have 31 1 2 been abused by Father Grieman. Q. 3 And as a child? The e-mail reports that he was abused as a youth -- 4 A. I think that was -- 5 Q. -- by Father Grieman? 6 A. I -- I don't know that it was necessarily 7 clear, but I think it -- it -- it was pretty 8 obvious. 9 Q. And when you received the information that the 10 individual, whose name you don't remember at 11 the moment, is reporting abuse by Grieman, 12 what did you do with that? 13 A. Again, I quickly conferred with Father 14 McDonough. 15 gentleman was describing had occurred when 16 Father Grieman was pastor of the Church of St. 17 John the Baptist in New Brighton, so Father 18 McDonough and I quickly determined to report 19 it to the polices in New Brighton. 20 Q. I knew that the events that this And how soon after having received the 21 information did you and Father McDonough 22 decide to report and actually make the report? 23 A. 24 25 And, again, I think that was probably within days is my recollection. Q. What is your understanding about how quickly a 32 1 report should be made upon receiving 2 information suspicious of sexual abuse? 3 A. Well, if it's information that's covered by 4 the mandatory reporting statute 626.556, the 5 statute says it should be reported 6 immediately, and they define "immediately" as 7 being reported within 24 hours. 8 Q. 9 And did you consider this to be under the purview of 626.559 (sic)? 10 A. 556. 11 Q. 556. 12 A. I did not. 13 Q. Was it you or McDonough that actually made -- 14 I do not. imparted the information to law enforcement? 15 A. I was the one that called the police. 16 Q. What did you tell them? 17 A. Basically what I had learned from this e-mail. 18 Q. What action was taken by the police? 19 A. Well, they very quickly said that because it 20 was so old, they weren't gonna do anything 21 about it. 22 officer, said that she would give me a case 23 number to prove that I had reported it, but 24 that they -- she was not gonna take any 25 action. And the -- the officer, a female Apparently she felt that we didn't 33 1 have enough information to give them and -- 2 and I said, "Well, I'm giving you everything I 3 have." 4 Q. Well, you imparted to them what you had 5 learned in the e-mail from Greta Sawyer, 6 correct? 7 A. Correct. 8 Q. And that's everything you gave to law 9 enforcement, correct? 10 A. Correct. 11 Q. Did you go back to the Grieman file and review 12 the Grieman file to see if there had been 13 other complaints and/or reports made 14 concerning him? 15 A. I don't know if I did that or not. 16 Q. Do you remember having done that today at all? 17 A. I don't remember one way or the other whether 18 19 I did that. Q. Did you tell law enforcement, "We keep priest 20 files, some of which are secret, but 21 nonetheless, we keep priest files and we're 22 prepared to turn that file over to you to see 23 if there are other instances of sexual 24 misconduct"? 25 A. Well, I -- first of all, I don't understand 34 1 the characterization "secret." 2 would not have discussed with the police 3 officer anything about the file. 4 Q. But I -- I Have you at any time ever turned any files 5 concerning priests accused of sexual abuse 6 over to any law enforcement agencies, either 7 at the time you made reports or subsequent to 8 having made the reports? 9 A. Yes. 10 Q. When is the first time you ever turned a file 11 12 over to law enforcement? A. 13 14 chancellor, probably involving Father Wenthe. Q. 15 16 I think during the period of time that I was Any other files that were turned over to law enforcement by you? A. I think that since January 1st of 2013, when I 17 switched my status from being the chancellor 18 for civil affairs to being a consultant, there 19 have been a number of occasions where we've 20 turned files over to the -- to the police in 21 one way, shape or form. 22 directly involved in that, other than I was 23 involved somewhat in matters pertaining to 24 Father Shelley. 25 Q. We'll get to that. I haven't been 35 1 (Discussion out of the hearing of 2 the court reporter) 3 BY MR. ANDERSON: 4 Q. Is it correct to say, then, that the only file 5 that you turned over to law enforcement while 6 chancellor would be -- have been that Wenthe 7 file? 8 A. 9 10 That's -- as I sit here, that's the only one I recall, yes. Q. 11 And what's the next report in time, then, made by you, if any others -- 12 A. Well, I was -- 13 Q. -- other than Keating and Grieman? 14 A. -- I was somewhat involved in the reporting of 15 16 the matters involving Father Freddy Montero. Q. Before we get to Montero then, did you 17 confront Father Grieman and ask him if he in 18 fact had engaged the youth in sexual abuse as 19 had been reported? 20 A. I -- I wouldn't describe it as confronting 21 Father Grieman. 22 of occasions where I talked with Father 23 Grieman by telephone. 24 Arizona, I believe. 25 Q. There was at least a couple He was living in Did you ask him if he had abused that kid or 36 1 2 any others? A. 3 4 Richard Setter, if I recall correctly. Q. 5 6 I did, and I think he was also interviewed by Did you ask him before it was turned over to Setter or after it was turned over to Setter? A. Well, I think we gave him a heads-up that the 7 matter was going to be investigated by Mr. 8 Setter. 9 Q. 10 And Setter was a private investigator retained by the archdiocese -- 11 A. Correct. 12 Q. -- to do investigations? 13 A. Correct. 14 Q. When you first asked him, did you ask him if 15 16 he had abused this kid or any others? A. Correct, and -- and I don't know that I asked 17 him that question. I think I shared with him 18 the information that we ob -- had obtained. 19 We had spent a fair amount of time trying to 20 get additional corroborating information from 21 the individual, but Greta Sawyer had 22 communicated with him, sending a list of 23 questions, helping us to get further 24 information, none of which was forthcoming. 25 had at some point in time met with the man's I 37 1 father, who had no further information that 2 was helpful to either corroborate it or -- or 3 refute it. 4 have notified Father Grieman of what we were 5 dealing with and he would have volunteered 6 that he never abused that individual or any 7 other individual. 8 Q. 9 So at some point in time I would Well, you had dealt with clerical offenders before and you knew, even if they had 10 offended, more often than not they denied 11 having offended when confronted, correct? 12 A. Actually, in my experience it's more often 13 than not they've admitted it as opposed to 14 denied it. 15 Q. How many have admitted it to you that they -- 16 A. Well, if -- if you're talking about matters 17 that have been in litigation since about 1985, 18 I would say probably 90 percent of 'em have 19 admitted it in some fashion. 20 Q. 21 Well, our experience differs very dramatically there. 22 Did you tell anybody in Arizona -- 23 Father Grieman was out of ministry when you 24 made the call, wasn't he? 25 A. I'm not sure what his status was down there. 38 1 He had -- he was on a -- some kind of like -- 2 I don't know that medical retirement was a 3 good word for it, but I think he was doing 4 some ministerial work in Arizona, but I -- I 5 wasn't certain what. 6 Q. Did you or anybody from the archdiocese notify 7 anyone in Arizona to whom he was doing 8 ministry that an accusation of childhood 9 sexual abuse had been made against him? 10 A. It's my recollection that somebody, Father 11 McDonough or Archbishop Flynn, notified them 12 of what, you know, we had learned and I -- if 13 I recall correctly, there was at least a 14 letter as well that conveyed some of that 15 information. 16 Q. 17 Notified whom, the pastor with whom he was working? 18 A. No. 19 Q. And do you know if the bishop notified the 20 I think the bishop of the diocese. parishioners or the public or anybody else? 21 A. I don't know what they did in Arizona. 22 Q. And after you spoke with Grieman, you indicate 23 that Setter became involved, that means that 24 the archdiocese retained Setter to do an 25 investigation, correct? 39 1 A. Correct. Since the police were not gonna 2 investigate it and -- and, thus, we wouldn't 3 have the opportunity to have some 4 determination by -- by the police of -- of 5 whether the matter had occurred or not, we 6 engaged the services of Richard Setter to 7 conduct an investigation. 8 Q. 9 Because you hadn't looked at the file, did it occur to you that there may have been 10 information in the file that, if known to the 11 police, may have caused them to be more 12 interested in investigating it because there 13 could be evidence of other crimes or evidence 14 of other reports of misconduct in the file? 15 A. I -- I don't know that I made -- I don't know 16 that I looked at the file, quite frankly. 17 -- I don't recall one way or the other whether 18 I looked at the file, so I didn't make that 19 determination. 20 Q. Did you at any time -- what was your 21 involvement concerning the Grieman matter 22 after it got turned over to Setter for 23 investigation? 24 25 A. I Well, I think ultimately Richard Setter wrote a report that was returned to the archdiocese. 40 1 And subsequent to that, I think that it may 2 have been reviewed by the clergy review board 3 to determine whether they thought any further 4 steps needed to be taken. 5 Q. 6 7 And what finding did the clergy review board make? A. I don't know that it made a finding. It 8 didn't have any -- I don't recall it making 9 any recommendations about any further action 10 11 steps. Q. Well, do you recall it having made the same 12 finding they did in Keating, that the 13 allegation was unsubstantiated? 14 A. 15 16 purpose as it had been in the Keating matter. Q. 17 18 I don't think it was referred to them for that Well, what purpose was it referred to them for then? A. I think just to have another set of eyes look 19 at it to see if there were any further steps 20 the archdiocese should be taking. 21 Q. In any case, no restriction was placed on 22 Grieman as a result of the report, the 23 investigation or the review by the review 24 board, correct? 25 A. To the best of my knowledge, there was no 41 1 restriction placed on Father Grieman by the 2 archdiocese or its archbishop. 3 what they did in Arizona. 4 I don't know One other thing that I did, which 5 may come within your question, is, I 6 ultimately had a meeting with the pastor -- 7 the then pastor and staff -- some of the staff 8 at the Church of St. John the Baptist. 9 shared with them, you know, what had been 10 11 I done, what was going on. Q. 12 Who, if anybody else, have you reported, then, to law enforcement? 13 A. As I mentioned a moment ago, Father Montero. 14 Q. When would that have been? 15 A. You know, I don't recall what year that was. 16 I can't remember what year it was. 17 Q. How did the information come to you? 18 A. Father Montero was apparently engaged in a 19 relationship with an adult woman. And she 20 came in to see Father McDonough and told him 21 about that relationship, and apparently in 22 telling Father McDonough this, she also 23 described her belief that she -- she didn't 24 know if she'd observed it or if it was a dream 25 or what, but she thought that Father Montero 42 1 may have sexually abused her daughter. While 2 Father McDonough was meeting with the woman, 3 he came up to my office and related this to me 4 and said, "I'm assuming this is a mandatory 5 reporting situation," because it was something 6 that had occurred, you know, shortly before 7 his meeting with this woman, so it was well 8 within that three-year period. 9 discussed that briefly in terms of whether or And so we 10 not the woman was imparting this to him as 11 part of any pastoral relationship that might 12 be privileged. 13 was reporting this to report it. 14 said, "Well, it clearly appears to fall within 15 the mandated reporting statute and we should 16 get it reported." 17 report it to?" And he said it was not, she And so I And he said, "Who should we 18 Q. And he asked you that? 19 A. He asked me that. 20 Q. Okay. 21 A. Well, I told him that I thought it was very And you answered? 22 helpful if we could get it reported to 23 somebody that would take immediate action. 24 You know, if you've read newspaper reports 25 recently, the talk's about the number of child 43 1 abuse reports that nothing ever happens, I 2 think the recent statistic they were talking 3 about in the state of Minnesota some 68,000 4 child abuse reports are made each year, about 5 48,000 are dismissed with nothing being done. 6 We -- we wanted -- 7 Q. So no action taken -- 8 A. Right. 9 Q. -- they're not dismissed? 10 A. Right. 11 Q. -- but oftentimes the statute of limitations 12 and a lot other reasons. 13 to the question, Mr. Eisenzimmer, and that is 14 this. 15 to? 16 A. 17 So let me get back What police agency was the report made Well, ultimately, to the Minneapolis Police Department. 18 Q. And by whom? 19 A. Father McDonough is the one that actually 20 21 talked to the officer. Q. 22 23 report to law enforcement? A. 24 25 Any other situations where you have made a Well, I was involved in the report that was made regarding Father Wehmeyer. Q. Any others? 44 1 A. Not that I recall as I sit here. There was 2 others, I think, that came to the attention of 3 the police in some way, shape or form, but 4 they had already been reported by the time we 5 became aware of that. 6 Q. You made mention of Richard Setter & 7 Associates and it's also evident that they 8 have been retained and had been retained by 9 the archdiocese to do investigation a number 10 of times, correct? 11 A. Correct. 12 Q. Concerning allegations of childhood sexual 13 abuse and do some investigation for and hired 14 by the archdiocese, correct? 15 A. And it's not been limited to that subject 16 matter, Richard Setter's investigated other 17 things for us as well. 18 Q. 19 Sure. But let's talk about the childhood sexual abuse ones then. 20 A. Okay. 21 Q. Can you give me a gross estimate of how many 22 times you're aware they got hired to 23 investigate childhood sexual abuse 24 allegations? 25 A. While I was chancellor for civil affairs? 45 1 Q. At any time. 2 A. Well, I mean, I know that during the period of 3 time I was outside legal counsel for the 4 archdiocese, Mr. Setter's services were used 5 at times as well. 6 Q. 7 Can you give us a gross estimate of how many times? 8 A. I -- I can't, no. 9 Q. It's more than a dozen, is it not? 10 A. I would guess it would be more than a dozen if 11 you count all the kinds of things he handled, 12 yeah. 13 Q. As it pertains to childhood sexual abuse 14 allegations, can you recall any time in which 15 Setter & Associates as having investigated 16 found that there was evidence of childhood 17 sexual abuse -- 18 A. Well, I don't -- 19 Q. -- that did not exonerate the cleric? 20 A. I -- Richard Setter was never asked to either 21 substantiate -- necessarily substantiate it 22 and reach his own conclusion or exonerate it 23 and reach his own conclusion. 24 investigate and provide us with the 25 investigative information so that someone He was asked to 46 1 could make that determination based upon the 2 facts as he found them. 3 Q. Can you name any instance in which Setter & 4 Associates were hired to do that for the 5 purpose you described in which he provided 6 evidence that concluded that childhood sexual 7 abuse had occurred by a cleric? 8 A. 9 I don't think in the ones that I worked with him on, but he was doing other cases that I 10 think that there was some substantiation, but 11 I don't remember what they were. 12 Q. Can you name any case in which he was retained 13 to do this investigation regarding childhood 14 sexual abuse where the report he provided 15 indicated there was evidence of a crime having 16 occurred -- 17 A. No -- 18 Q. -- and if so, can you name them? 19 A. I don't think so, no. 20 Q. Can you identify any instances in which Setter 21 & Associates were retained to investigate a 22 cleric suspected of childhood sexual abuse 23 where any disciplinary action was taken by the 24 archbishop against the cleric investigated by 25 Setter & Associates? 47 1 A. 2 Well, I think -- I don't recall any while I was chancellor, no. 3 Q. Well, at any time? 4 A. Well, I -- I -- I mean, I can't discuss what 5 might have been done while I was outside legal 6 counsel. 7 attorney/client privilege. 8 Q. 9 That would have been covered by the Well, you can discuss what Setter did and what action was taken -- disciplinary action was 10 taken against any cleric. 11 disciplinary action taken against any cleric 12 as a result of any investigation by Setter & 13 Associates concerning childhood sexual abuse 14 at any time? 15 A. Let me clarify that. I'm asking, was any There was things that 16 Mr. Setter would have done for the archdiocese 17 when I was outside legal counsel that I would 18 not have been involved in, so I can't answer 19 that question. 20 Based upon my knowledge, I don't 21 know that I can recall at the moment where 22 there was a case he investigated that resulted 23 in disciplinary action. 24 25 Q. Okay. Are you aware of him having investigated any child pornography allegations 48 1 2 by any clerics? A. 3 Well, first of all, let's clarify the language here. Are you using the term -- 4 Q. Possession of child pornography. 5 A. I'm sorry. 6 Q. Possession of child pornography. 7 A. Okay. If we're talking about child 8 pornography or alleged child pornography, I 9 think there was a case involving Father 10 Shelley where Richard Setter was retained 11 apparently by the archdiocese in some fashion. 12 Q. Were you involved in that? 13 A. I was not at the time he was retained, no. 14 Q. When did you first become involved? 15 A. In probably early 2012. 16 Q. And when did you first learn that he had been 17 -- Setter & Associates had been retained at 18 all in connection with evaluating that? 19 A. 20 21 I probably learned that, I'm guessing, sometime in either late 2011 or early 2012. Q. Do you and did you consider, either while 22 chancellor or any official capacity within the 23 archdiocese, possession of child pornography 24 the equivalent of also childhood sexual abuse? 25 A. Well, I think if you look at the language of 49 1 the Minnesota child abuse reporting statute, 2 that child pornography is considered a form of 3 abuse, sexual abuse of a child. 4 within that statute. 5 Q. 6 7 And the possession of it is illegal, is it not? A. 8 The possession of child pornography is illegal. 9 (Discussion out of the hearing of 10 the court reporter) 11 BY MR. ANDERSON: 12 It can fall Q. Are you aware of any other investigations done 13 by Setter & Associates into allegations of 14 possession of child pornography by clerics, 15 besides Shelley? 16 A. I am not. 17 Q. The last one you mentioned that you were 18 involved in having made a report concerning 19 abuse was Wehmeyer. 20 about that. Let me ask you questions 21 A. Okay. 22 Q. When did Wehmeyer first come onto your radar 23 as somebody who engaged or may have engaged in 24 inappropriate conduct towards youth? 25 A. If -- if it relates to youth, that would have 50 1 been in June of 2012. 2 Q. And -- 3 A. And by "youth," I'm assuming we are talking 4 about a person under the age of 18. 5 Q. Yes. 6 A. Yeah, June of 2012. 7 Q. Okay. And what information did you receive or 8 from whom did you receive information in June 9 of 2012? 10 A. And that I can't tell you because that would 11 be covered by attorney/client privilege. 12 can tell what action steps I took subsequent 13 to that, any communication I received, but I 14 can't discuss the communication. 15 Q. In 2012, you're the chancellor? 16 A. Correct. 17 18 I Chancellor for civil affairs. There's more than one chancellor. Q. 19 So to the question -- so first we have to lay a foundation to see if there's a privilege. 20 A. Sure. 21 Q. You understand why we have to ask you these 22 questions. 23 A. Sure, that's fine. 24 Q. Okay. 25 First, in June of 2012, you received some information concerning a suspicion of 51 1 2 sexual abuse of youth by Wehmeyer, correct? A. Well, I'm -- I'm not gonna discuss the 3 substance of the information I learned. 4 will tell you that in June of 2012, I learned 5 some information that caused me to take 6 certain actions relative to that and that 7 those actions related to Father Wehmeyer and 8 the question of whether or not he had sexually 9 abused a minor. 10 Q. I Before June of 2012, had you ever reviewed -- 11 before receiving that information, had you 12 ever as chancellor or otherwise reviewed the 13 file of Wehmeyer? 14 A. 15 I had reviewed some information in his file, yes. 16 Q. Why? 17 A. In, I think it was, 2009, there was a 18 question -- I think ultimately there was gonna 19 be a merger of two parishes, Blessed Sacrament 20 and St. Thomas in St. Paul. 21 was the pastor of one of them or parochial 22 administrator or something, and the archbishop 23 was apparently considering naming him pastor 24 of the other one or parochial administrator or 25 something. Father Wehmeyer And the archbishop raised the 52 1 question about whether the matter should go to 2 the clergy review board. 3 anything about Father Wehmeyer at the time, so 4 I was trying to determine what was the 5 situation and I was also trying to determine 6 for the archbishop's benefit whether his 7 appointment to the one parish he was then at 8 had gone through the clergy review board. 9 Q. 10 11 And so I didn't know And had it gone through the clergy review board? A. As near as I could determine, it had not. The 12 assignment that he was in had occurred prior 13 to my becoming chancellor, so it was prior to 14 my being -- being involved with the clergy 15 review board. 16 involving him had come to the clergy board 17 during the period of time that I'd been there 18 from late 2005 to this point we're talking 19 about in 2009, so I -- I also contacted Father 20 McDonough to find out what he could tell me 21 about the matter and whether it had gone to 22 the review board or not. And certainly he -- no matters 23 Q. And when -- 24 A. And so -- and, excuse me, so, then, I reported 25 this all back to the archbishop. 53 1 Q. And when in 2009 you did look at the Wehmeyer 2 file to make the kind of determination you 3 were trying to make, did you see in the file 4 anything that concerned you about his fitness 5 to be in ministry and around youth? 6 A. Certainly there was questions that had been 7 raised about his conduct. I -- I didn't 8 perceive myself as being the person 9 responsible to determine fitness for ministry, 10 and certainly there was nothing in there that 11 suggested that he had behaved inappropriately 12 with youth under the age of 18. 13 this is information that -- I took some of 14 that out of the file, put it in a memorandum, 15 I believe, to the archbishop to help him 16 decide what he wanted to do had with Father 17 Wehmann (sic) relative to referral to the 18 clergy review board. 19 20 MR. WIESER: A. 21 22 And, again, Wehmeyer. Or, excuse me, Wehmeyer. BY MR. ANDERSON: Q. Do you recall noting in the file there were 23 concerns about him controlling his sexuality 24 in the seminary? 25 A. Could you repeat the question? 54 1 Q. Do you recall on review of the Wehmeyer file 2 noting that there were concerns about him 3 being able to control his sexuality in 4 seminary? 5 A. I don't recall specifically what was in that 6 file, what -- you know, I would have imparted 7 certain information to the archbishop. 8 Q. 9 Do you recall in review of that file that there was documentations that he had tried to 10 pick up 18- or 19-year-olds at Barnes & Noble, 11 asking if they were horny? 12 A. I don't know what his purpose was. I do 13 recall there a description in the file of a 14 matter at Barnes & Noble. 15 Q. Do you recall in the file that it reflected he 16 had actually been sent to St. Luke's for 17 evaluation? 18 A. 19 20 I believe that the file contained information indicating he had gone to St. Luke. Q. 21 Do you recall that the file reflected there was a diagnosis of a sexual disorder? 22 A. I don't recall what the diagnosis was. 23 Q. Do you recall that in the file it reflected 24 the archbishop in 2005 had been informed of 25 another similar incident to the ones at Barnes 55 1 & Noble that had been reported earlier 2 occurring in Jerusalem? 3 A. Occurring in? 4 Q. Egypt or Jerusalem. 5 A. I don't recall that. 6 Q. Do you recall on review of the file that in 7 2006, he was -- he was noted to have been 8 cruising to pick up people for sex at parks? 9 A. What I recall is, is a description in the file 10 that he was seen around a park that was a 11 known hangout for people cruising for same-sex 12 relations. 13 description, they weren't describing him as 14 cruising, necessarily, or that he had made any 15 attempts to pick up somebody, but I do recall 16 a discussion of some park in St. Paul. 17 Q. 18 If I -- I -- I -- if I recall the Do you recall that he had been identified as a sex addict? 19 A. I do not. 20 Q. Do you recall that he was on monitoring at the 21 22 time you reviewed that file? A. I do recall that he was on monitoring because, 23 if I'm recalling correctly, I think the 24 memorandum I wrote to the archbishop mentioned 25 that he was being monitored by Tim Rourke. 56 1 Q. And the monitoring program was -- what did 2 that signify to you, that he was being 3 monitored by Tim Rourke? 4 A. Just that, that -- there was a lot of people 5 that were monitored by Tim Rourke for a 6 variety of reasons to help them maintain 7 whatever aftercare requirements they would 8 have. 9 and so that told me that, you know, they were It depended on what the situation was 10 working with Tim Rourke and the promoter of 11 ministerial standards office. 12 Q. Based on your review of that file and what you 13 saw in it, did you tell the archbishop or any 14 other top official maybe Wehmeyer should not 15 be active in ministry? 16 A. Nobody was asking me to impart any judgment 17 regarding those things. That's not a function 18 that I would have ever fulfilled within the 19 archdiocese. 20 any discussion of anyone's fitness for 21 ministry. No one -- no one included me in 22 Q. Well, did you think it? 23 A. I -- it wasn't -- that wasn't the -- the 24 purpose for which I was reviewing the file. 25 If that was the purpose, I would have probably 57 1 reviewed, you know, far more of the file. 2 limited review that I was performing at the 3 time was to answer the archbishop's question 4 in terms of, you know, referring the matter to 5 the clergy review board. 6 Q. Yeah, the ultimate question was, should we 7 continue this guy in ministry and place him 8 into a parish? 9 A. The I didn't know what the ultimate question was, 10 other than that they were considering putting 11 him in a second parish, he was already in one. 12 Q. 13 14 So the question was ultimately, is he safe, right? A. No. That wasn't in my mind the question. The 15 question was, is this a matter that, you know, 16 should go to the review board. 17 I was trying to tell the archbishop was, is 18 this a matter you want to go to the clergy 19 board if it didn't go to the clergy board when 20 he had the -- the first parish, in essence. 21 22 MR. KINSELLA: In fact, what Excuse me, off the video record to change media. 23 MR. ANDERSON: 24 THE WITNESS: 25 (Recess taken) Want to take a break? No. That's fine. 58 1 MR. KINSELLA: 2 record. 3 BY MR. ANDERSON: 4 Q. All right. Back on the video I had asked you if on review of 5 the file you had concerns about the safety of 6 Wehmeyer and youth and did you tell anybody 7 about that, and I think you said it wasn't 8 your job. 9 A. Well, and what I'm saying -- 10 MR. HAWS: 11 12 That's not what he testified to. A. 13 14 Object to the form. Yeah, what I'm saying here -- well, let me -BY MR. ANDERSON: Q. 15 Well, let me ask you a question and we can see. 16 A. Okay. 17 Q. First, after you reviewed the file of 18 Wehmeyer, at that time you knew he was being 19 considered for ministry, correct, and there 20 was a question whether he should continue in 21 ministry as a pastor or as an administrator or 22 be removed, correct? 23 A. It -- it -- no. That wasn't the question. 24 Q. Well -- 25 A. I -- I wasn't being asked to express any 59 1 opinion about his fitness for ministry or 2 continuing in ministry. 3 that was being asked of me was relative to the 4 status of referring his appointment to the 5 clergy review board. 6 Q. The only question And the purpose of the clergy review board and 7 the purpose of the archbishop asking you to do 8 that was to determine whether or not he should 9 continue in ministry and in what capacity, 10 correct? 11 A. No. 12 Q. You knew that -- 13 A. Again, the archbishop was talking about 14 referring him to the clergy review board and 15 so I knew that it was -- be important for the 16 archbishop to know whether or not his previous 17 appointment had gone to the clergy review 18 board. 19 matter didn't go to the clergy review board 20 the last time, so what do you want to do this 21 time? 22 back, and I put that all in a memorandum, I 23 believe, to the archbishop. 24 25 Q. So I reported to the archbishop the That was the sole purpose of my going So did you, when you reviewed the file before you reported that to the archdiocese, 60 1 archbishop, have concerns about Wehmeyer's 2 sexual history -- 3 A. Again -- 4 Q. -- and safety -- 5 A. Again -- 6 Q. Did you have concerns is the question. 7 A. That wasn't -- that wasn't something I was 8 9 looking at the file for, so -Q. I know, but you may not have been asked to 10 look at the file, but when you looked at the 11 file, didn't it raise red flags to you and 12 say, "Wait a minute. 13 things in this file that cause me concern," 14 yes or no? 15 A. There are a number of Well, that was -- there was certainly history 16 in that file. I didn't -- I didn't 17 characterize it, I didn't evaluate it, I 18 didn't make a judgment call in terms of what 19 was going on, that wasn't what I was being 20 asked to do. 21 any input or any opinion from me relative to 22 his fitness in ministry, so that wasn't a 23 matter that I, you know, I mean, devoted any 24 attention to. 25 archbishop ever asked me about, someone's The archbishop was not seeking That was not ever something the 61 1 2 fitness for ministry. Q. 3 4 I'm not talking about fitness of -- about ministry, I'm talking about safety here. A. Well, again, to me those are -- somebody who's 5 not safe is not safe for ministry or fit for 6 ministry. 7 Q. Did you have concerns about the safety of 8 Wehmeyer based on that review of him being in 9 ministry? 10 A. Concerns about what? 11 Q. About him being around youth. 12 A. No. 13 Q. Not at all? 14 A. I -- no. I did not. There was no indication in the file 15 that he had -- that he had been involved with 16 youth inappropriately. 17 Q. And did it occur to you that you -- you knew 18 the archbishop had not reviewed the file, 19 correct? 20 A. I did not know that. 21 Q. Did you tell the archbishop, "I've reviewed 22 this file, there's some information in there I 23 think you should know and so you should go 24 back and look at it," or, "I need to tell you 25 about it"? 62 1 A. 2 3 What I told the archbishop is in a -- is in a memorandum. Q. When -- I may have asked you this, but did the 4 Wehmeyer matter go before the clergy review 5 board at that time? 6 A. No. 7 Q. Why not? 8 A. The archbishop apparently decided not to send 9 it to the clergy review board. 10 Q. Did you disagree with that decision? 11 A. I didn't agree or disagree with the decision. 12 It was his decision. 13 know, whether his decision is right or wrong. 14 Q. I don't decide, you Actually, the archbishop is the one that can 15 decide whether to send it to the review board 16 or not? 17 A. Correct. 18 Q. The archbishop -- 19 A. He's the only one that can decide that. 20 Q. And he doesn't actually have to even send it 21 to the review board if he doesn't want to, 22 correct? 23 A. That's correct. 24 Q. They're simply advisory, appointed by him, 25 correct? 63 1 A. They are advisory, appointed by him. 2 Q. And, again, you as chancellor are in a similar 3 role, advisory, appointed by him? 4 A. Correct. 5 Q. Did he tell you why he chose not to send him 6 7 to the review board? A. He did not share that with me. In fact, I -- 8 I never spoke to him nor did he necessarily 9 ever share with me his reasons for making 10 11 whatever decision he made. Q. At that time there was a dispute among some of 12 the officials about whether he should be 13 actually continued in ministry at all, wasn't 14 there? 15 A. I don't know that. 16 Q. Do you recall Jennifer Haselberger raising 17 18 concerns? A. I only learned of that more recently, 19 probably, you know, since she resigned that 20 she had -- she had apparently raised some 21 concerns about Wehmeyer. 22 at the time. 23 Q. I did not know that Did anybody raise concerns about him 24 continuing in ministry or being a pastor at 25 that time? 64 1 A. 2 In 2009 when he was being considered for that appointment? 3 Q. Yes. 4 A. I don't think any -- I -- I didn't hear any 5 6 concerns raised at that point in time. Q. 7 8 Was Father Laird involved in the process at that time? A. 9 I don't know that. I didn't have any involvement with Father Laird in -- in 2009 10 when they were considering Father Wehmeyer for 11 that appointment. 12 Q. Do you recall there was actually a decree by 13 then by archbishop Nienstedt appointing 14 Wehmeyer to be pastor of Blessed Sacrament? 15 A. Well, at some point I learned that he was 16 appointed to the second parish. 17 when I learned that. 18 would have been appointed, I'm guessing, July 19 1 of 2009, but I don't know when I learned 20 that. 21 the court reporter) 23 BY MR. ANDERSON: 25 I think he probably (Discussion out of the hearing of 22 24 I don't know Q. Did you or, to your knowledge, anybody from the archdiocese inform the folks at Blessed 65 1 Sacrament what had been known about Wehmeyer's 2 history? 3 A. I don't know anything about that. I wouldn't 4 have been involved in that. 5 clarify that. 6 in 2012, I did have communication with 7 trustees at that point in time. 8 Q. 9 10 Okay. Except let me Once the police were involved We'll to get that. We're in the 2009 period. A. Yeah. No. I was not aware of any 11 communication to the trustees. 12 have been involved with that. 13 Q. I wouldn't So in any case, you learned that he had been 14 continued in ministry with full faculties, 15 even though he was under monitoring, correct? 16 A. Well, I don't know that I would have known he 17 had full faculties. 18 known he had some kind of faculties, but what 19 restrictions were on him and -- and the like I 20 -- I was not fully aware of those probably. 21 Q. 22 23 I knew -- I would have Do you recall if he was appointed as pastor or business administrator? A. I'm -- I think he was probably appointed as 24 pastor because those parishes subsequently 25 merged and he was pastor at the time of their 66 1 2 merger. Q. Did Archbishop Nienstedt express to you 3 concerns or that he was weighing conflicting 4 opinions about Wehmeyer's safety to be in 5 ministry at that time? 6 A. If we're talking about 2009 -- 7 Q. Yes. 8 A. -- there was never a discussion with 9 Archbishop Nienstedt about anything related to 10 the fitness in ministry of Father Wehmeyer. 11 (Discussion out of the hearing of 12 the court reporter) 13 BY MR. ANDERSON: 14 Q. Did Archbishop Nienstedt tell you then or at 15 any time why he didn't turn Wehmeyer over to 16 the clergy review board for their 17 consideration? 18 A. I've never had a discussion with him where 19 he's imparted any information to me about 20 that. 21 Q. Were you able to discern from your experience 22 and your position what criterion he used to 23 turn a matter over to the review board or not 24 turn it over to the review board as he chose 25 to in the case of Wehmeyer? 67 1 A. No. I could not ascertain any criteria that 2 he would use for that purpose. 3 few occasions where things were referred to 4 the board. 5 Q. There was very In 2009 on the question of sexual abuse and 6 clerics and continuation in ministry, who was 7 Archbishop Nienstedt's, in your view, primary 8 consultor or advisor? 9 MR. HAWS: 10 Talking about sexual abuse of minors? 11 MR. ANDERSON: 12 Yes. BY MR. ANDERSON: 13 Q. To whom did he look the most? 14 A. Well, I would say both his vicar general as 15 well as Father McDonough, who was then serving 16 as delegate for safe environment. 17 McDonough was vicar general for a short period 18 of time after Archbishop Nienstedt became 19 archbishop of St. Paul and Minneapolis, but 20 then he was replace by, first then Father 21 Piche, now Bishop Piche, at which time Father 22 McDonough was delegate for safe environment. 23 So typically it would have been the vicar 24 general and Father McDonough. 25 Q. Father McDonough went from vicar general to delegate 68 1 for safe environment and I at least 2 interpreted him to say that he pretty much 3 looked to McDonough for the handling and 4 advising of matters pertaining to sexual 5 abuse. 6 A. Is that your experience? Well, there's probably two experiences. One 7 was with respect to matters that had already 8 arisen prior to Father McDonough becoming 9 delegate for safe environment, so everything 10 up to sometime in what, 2008, I suppose. 11 there was new things that would occur after 12 Father McDonough was no longer vicar general. 13 Certainly for that earlier period of time, he 14 would look to Father McDonough. 15 example, with questions would come up about 16 Father Wehmeyer, since those events had 17 occurred prior to 2009, he would look to 18 Father McDonough. 19 come up subsequent to that time, he might look 20 to either his then current vicar general or if 21 it was a legal question, he would look perhaps 22 to me. 23 Q. 24 25 So, for If mat -- new matters had And an example of a legal question would be, "Do we have to report or not?" A. Then I don't know that I ever recall having a 69 1 conversation with Archbishop Nienstedt about a 2 matter of whether we had to report or not. 3 think that I've described most of those cases 4 here and -- and it's -- typically was before 5 him, with the exception of Father Wehmeyer and 6 there I simply informed the archbishop what we 7 were doing. 8 Q. 9 Going back to 2009, then, at that time what was Father Laird's involvement in the 10 11 I hierarchy? A. He wasn't. I think that -- I think Father 12 Laird became vicar general in November of 13 2009, if memory serves me correctly, so at the 14 time that Father Wehmeyer would have been 15 given that appointment, which I believe was 16 probably July of 2009, Father Laird was not 17 yet on -- on the scene. 18 Q. After Wehmeyer got that appointment to -- or 19 was given the appointment by the archbishop to 20 Blessed Sacrament -- it's Blessed Sacrament, 21 wasn't it? 22 A. Yeah, I can never remember which one he was -- 23 he was at one of these, it's Blessed Sacrament 24 and St. Thomas, he was at one and then he was 25 made pastor of both of 'em. 70 1 Q. 2 Yeah, I got Blessed Sacrament, but it could have been both. 3 In any case, sometime after that, 4 did you become aware that he was arrested for 5 a DUI? 6 A. At some point I became aware of that, but I 7 don't recall. 8 -- I don't know that I knew that before 9 probably June of 2012. 10 Q. I think that was -- you know, I Did you learn in 2009 that or hear anything 11 that he'd not only been arrested for a DUI, 12 but that while on monitoring, Joe Kueppers -- 13 or is it Kueppers or -- 14 A. Kueppers. 15 Q. -- Kueppers was the attorney that he called 16 17 for that advice? A. 18 19 I -- I never knew that while I was chancellor for civil affairs. Q. Did you become aware that at the time of his 20 arrest, it got reported in the police report 21 that Wehmeyer had been trying to pick up 22 teenagers to get them to go back to the 23 campground? 24 25 A. At some point I learned about something relating to a campground and the only thing I 71 1 remember learning was that he had said to some 2 young men, "Where is the party?" 3 I remember about that. 4 Q. 5 6 That's what And what was your source of having learned that? A. I don't even know that. I couldn't tell you 7 that. I probably learned that, again, as we 8 looked at the matter in June of 2012. 9 Q. Have you ever seen that police report? 10 A. I don't recall that I have, no. 11 Q. In September of 2009, there's indications that 12 Father Scerbo was involved with Wehmeyer and 13 under the supervision of Archbishop Nienstedt. 14 Did you have any involvement with Father 15 Scerbo and Wehmeyer in 2009? 16 A. I recall Father Scerbo sharing with me briefly 17 some matter he dealt with with Father 18 Wehmeyer. 19 Q. And what did Father Scerbo tell you? 20 A. I think he told me that Father Wehmeyer had 21 gone camping, that there was supposed to be 22 another adult there, that the other adult 23 didn't show up and so Father Wehmeyer was 24 camping with a youth and that he was gonna 25 talk with the youth's mother as well as with 72 1 2 Tim Rourke. Q. 3 4 to the youth's mother? A. 5 6 I think that he was reporting that that's what he had done. Q. 7 8 And he told you that before he actually talked And he told you that he was taking a youth, that is, a minor, camping? A. 9 The impression I had it was a -- it was a person under 18, yes. 10 Q. Did he identify the kid to you? 11 A. No. 12 Q. Did you, then, know who it was? 13 A. No. 14 Q. Did you tell Archbishop Nienstedt about that? 15 A. I did not. 16 Q. Why not? 17 A. I -- it -- Father Scerbo at the time was his I still don't know who it was. 18 vicar general, I assume he shared that with 19 Archbishop Nienstedt. 20 Q. Do you know if he did? 21 A. I don't know that. 22 Q. When he told you that, as one of the advisors 23 and given your experience, did you tell him, 24 "That is serious information that needs to go 25 to the archbishop right away"? 73 1 A. I did not make any comment of that nature. 2 Father Scerbo knew that he was concerned about 3 it, he shared that concern with me. 4 (Discussion out of the hearing of 5 the court reporter) 6 BY MR. ANDERSON: 7 Q. Did you tell Father Scerbo about what you had 8 found in the file when you reviewed it earlier 9 about Wehmeyer's history that there were -- 10 A. No. 11 Q. -- concerns? 12 A. I did not. 13 Q. Do you know if Father Scerbo did call the 14 15 mother? A. 16 Not of my own knowledge. I know that only from news reports that I've read. 17 Q. But at the time? 18 A. Oh, I did not know it at the time. I -- I 19 believe that he was reporting to me that he 20 had talked with the mother, although I'm less 21 than completely certain about that, but I 22 believe he had talked with the mother about it 23 at the time. 24 25 Q. Actually, Mr. Eisenzimmer, you reported he told you initially on questions that he was 74 1 going to call the mother, so he must have 2 talked to you before -- about this before he 3 called the mother -- 4 A. Again -- 5 Q. -- do you recall saying that? 6 A. -- I -- yeah, I'm not certain of the sequence 7 8 there. Q. 9 Okay. You are certain that he told you that Wehmeyer was taking a kid camping, correct? 10 A. That it -- 11 Q. And he was concerned about that, correct? 12 A. There was gonna be at least one youth and one 13 adult is what I recall, but the -- that the 14 adult was not there for whatever reason and 15 Father Scerbo felt that that was something 16 that was not appropriate; you know, it didn't 17 pass the appearance of propriety test, so to 18 speak. 19 Q. 20 21 Well, given Wehmeyer's history, it was suspicious of sexual abuse, wasn't it? A. I, you know, wouldn't wanna speculate to that. 22 There had never been any indication that 23 Father Wehmeyer had had sexual contact with 24 anyone, adult or youth. 25 (Discussion out of the hearing of 75 1 the court reporter) 2 BY MR. ANDERSON: 3 Q. Do you think it is -- Wehmeyer or a priest 4 taking a kid camping is suspicious of sexual 5 abuse? 6 A. Not necessarily. But the training that we've 7 provided to priests and lay people make it 8 clear that you shouldn't be in those kinds of 9 situations, if for no other reason than it 10 does raise the appearance of impropriety and 11 people will question it. 12 Q. Okay. Take the fact that you learned that 13 he's taking the kid on camping trips and you 14 also knew what had been reflected in the file, 15 some of which we had covered earlier, given 16 that, isn't those two things together in 17 itself suspicious of sexual abuse? 18 A. 19 Again, I -- I wouldn't wanna speculate today about it. I know that Father Scerbo -- 20 Q. I'm asking your opinion. 21 A. Well, I didn't have -- I didn't form an 22 opinion about it. Father Scerbo had his own 23 concerns about it. 24 anything. 25 information with me and he was gonna take He wasn't asking me to do He was simply sharing the 76 1 whatever actions that he decided he would 2 take. 3 Q. 4 5 Didn't that alarm you, knowing what you knew and had read about Wehmeyer? A. Well, I didn't -- again, alarm wasn't 6 something that I was, you know, determining. 7 He -- he was already expressing his own 8 concerns. 9 raised. I didn't have to have my own alarm He wasn't asking me to -- you know, 10 "Should I be alarmed about this?" 11 simply reporting it to me. 12 Q. He was But you knew he didn't have the benefit of 13 having reviewed the file the way you had, 14 correct? 15 A. Well, he knew that Father Wehmeyer was on 16 monitoring and things like that, so he 17 obviously had the background information. 18 Q. Well, you didn't know if he had reviewed the 19 file, but you do know that he knew that 20 Wehmeyer was on monitoring, correct? 21 A. Yeah, because he was -- told me he was gonna 22 talk to Tim Rourke and that's the only reason 23 he would know that Tim Rourke would be 24 involved is he knew he was on monitoring. 25 Q. So, then, let's just take those two facts, the 77 1 knowledge that he's on monitoring for a sexual 2 history, that was known to both you and 3 Scerbo, correct? 4 A. Well, again, I -- he hadn't been sexual with 5 anybody, so I would disagree with the sexual 6 history part of it. 7 Q. Why was he on monitoring? 8 A. Well, I don't know. 9 I -- I wasn't involved when he was put on monitoring. There was a 10 number of incidents where he had engaged in 11 conduct that is probably not appropriate for a 12 priest to be engaged in. 13 Q. It was sexual conduct? 14 A. Well, no. Asking -- he asked somebody if he 15 was horny. 16 asked somebody where the party is, so that's 17 disturbing, but it's not sexual abuse or it's 18 not sexual activity, but certainly raised 19 enough concerns apparently in someone's mind 20 to put him on monitoring and have him 21 evaluated. 22 Q. 23 That's not sexual contact. He The report from St. Luke's was in the file that you reviewed, wasn't it? 24 A. Yes, it was. 25 Q. And it said a lot more than what you just 78 1 described, didn't it? 2 A. Correct. 3 Q. It described him as having been a sexual 4 addict and having impulse control issues, 5 didn't it? 6 A. 7 8 Well, it said what it said. I don't recall as I sit here what all it said. Q. 9 Okay. Let's take the fact that you knew he was on monitoring, let's take the fact that 10 you knew it had to do with sexual issues and 11 let's take the fact, then, that you now are 12 hearing from Father Scerbo that he has taken a 13 kid camping. 14 together in itself set off an alarm for you 15 that says, "That's suspicious of sexual abuse 16 and this has got to be reported today"? 17 MR. HAWS: 18 19 Doesn't those three things I'll object to the form. It also misstates facts in evidence. A. There was no discussion about reporting 20 anything. 21 informing me of the actions he was gonna be 22 taking. 23 BY MR. ANDERSON: 24 25 Q. It was -- Father Scerbo was simply But you knew the law. My question to you is, then, why didn't you tell Scerbo more about 79 1 2 what you knew that you knew he didn't? A. Again, I didn't need to tell Father Scerbo. 3 He knew the man was on monitoring. 4 Scerbo felt he needed any information, he 5 could either get it from the file or he could 6 ask me. 7 Q. 8 9 If Father In any case, Wehmeyer was not reported to law enforcement at that time, correct? A. Well, there was no -- there was no -- nothing 10 to report. 11 impropriety that was being shared with me that 12 had occurred. 13 Q. There was no, you know, The statute says "suspicions of sexual abuse," 14 doesn't it, "suspicions of sexual abuse"? 15 cited the statute a number of times here. 16 A. You Yeah, I don't know that it uses the word 17 "suspicions," but it -- it knows or has reason 18 to believe. 19 Q. 20 21 conversation, a mandated reporter, is he not? A. 22 23 Scerbo was then, when he had this If it was a non-privileged communication to him, he would have been a mandated reporter. Q. Well, he was sharing it with you, so you knew 24 it was a non-privileged communication, 25 correct? 80 1 A. I assume that, sure. 2 Q. And you're, then, the advisor to the 3 archbishop and his delegates, which includes 4 Scerbo? 5 A. Well, I was an advisor, yes. 6 Q. So answer this yes or no. Didn't this 7 information that you had from Scerbo and your 8 knowledge of the file from your review of it 9 in 2009 concern you, yes or no? 10 MR. HAWS: 11 12 answered several times now. A. 13 14 I -- I can't answer that yes or no. BY MR. ANDERSON: Q. 15 16 Objection, asked and Well, did you have concerns? MR. HAWS: A. Same objections. He -- he -- I said this repeatedly. Father 17 Scerbo had his own concerns. 18 have my own independent concerns. 19 he was not asking me to share my concerns. 20 was simply reporting to me what he was -- what 21 he learned and what he was doing, that was it. 22 Q. 23 24 25 I didn't have to He -- he -He Wehmeyer's taking kids camping, you heard that, Scerbo reported that to you? A. Well I didn't hear that it was kids. -- I heard there was a youth. I heard 81 1 Q. Well, okay. 2 A. Yeah. 3 Q. Okay. 4 A youth then. MR. HAWS: 5 Counsel, are we at a point we can take a restroom break? 6 MR. ANDERSON: Sure. 7 MR. KINSELLA: Off the video record. 8 (Recess taken) 9 MR. KINSELLA: 10 record. 11 BY MR. ANDERSON: 12 Q. Okay. Back on the video Mr. Eisenzimmer, going back to the 13 conversation with Father Scerbo about 14 Wehmeyer, him sharing with you Wehmeyer's 15 taking a kid camping and him having told you 16 that he learned that, correct? 17 A. Well, I don't know about taking a kid. He was 18 camping with a kid and that Father Scerbo had 19 learned that. 20 Q. And he told you that? 21 A. He told me that, that's correct. 22 Q. And did he tell you from whom he had learned 23 24 25 that? A. He might have, but I don't recall how he learned it. 82 1 Q. Did you make any recording or memo or take any 2 notes of the conversation between yourself and 3 Father Scerbo concerning Wehmeyer camping with 4 this kid or taking this kid camping? 5 A. I did not. 6 Q. Why not? 7 A. Just -- it wasn't something that was coming to 8 me from an outside party. 9 already doing whatever was gonna be necessary 10 11 I assumed he was to memorialize that in Father Wehmeyer's file. Q. You made reference to some appearance of 12 impropriety. 13 got, standing alone from Father Scerbo and 14 Wehmeyer, raise an appearance of impropriety 15 to you? 16 A. Did this information that you Well, I -- I didn't, again, make a value 17 judgment about that. 18 teach -- 19 Q. What we tried to Well, just listen to the question, did it or 20 didn't it, yes or no? 21 appearance of impropriety to you as chancellor 22 then when he raised it? 23 A. 24 25 Well, I -- no. Did that raise an Because I didn't have enough information. Q. Did it raise an appearance of an imminent 83 1 danger to that child -- 2 A. No. 3 Q. -- yes or no? 4 A. No. 5 Q. Did it raise a suspicion that required further 6 investigation? 7 A. There was no thought given to that by me. 8 Q. Well, weren't you concerned about the safety 9 of the kid who he had either taken camping or 10 was camping with? 11 that kid's safety, yes or no? 12 A. Weren't you concerned about I shared the concern that Father Scerbo was 13 sharing with me was that Father Wehmeyer had 14 been camping with a youth alone and that that 15 raised this question about what's the 16 appearance of that and is that a proper 17 appearance. 18 Q. Well, appearance is one thing, that's what it 19 looks like, but appearances can also be 20 indications of things. 21 is, didn't it alarm you, knowing what you 22 know, that this kid was in danger or may have 23 already been hurt by Wehmeyer? So my question to you 24 A. I didn't -- I -- it didn't raise an alarm, no. 25 Q. And Father Scerbo -- did Father Scerbo tell 84 1 you that he was bringing this information to 2 the archbishop or he already had brought it to 3 the archbishop? 4 A. 5 6 He didn't express anything about what he had done with the archbishop. Q. 7 Did you tell him to bring it to the archbishop? 8 A. I did not. 9 Q. Why not? 10 A. I -- I -- I didn't have to tell Father Scerbo 11 12 what he needed to do. Q. Okay. As vicar general, you knew that he -- 13 that was something that is -- it's his job to 14 bring it to the archbishop? 15 A. 16 Well, if he was bringing it to me, I was assuming he was bringing it to the archbishop. 17 Q. Okay. And do you know if he did? 18 A. I don't know that. 19 Q. Do you know what further action Father Scerbo 20 took concerning this information about the 21 kid, Wehmeyer and camping? 22 A. I believe that I learned at some point in time 23 that Tim Rourke was aware of that, so I 24 assumed Tim Rourke had heard it from either 25 Father Scerbo or someone. 85 1 Q. Tim Rourke was aware of what, that the kid -- 2 A. About this camping thing with the youth. 3 Q. Tim Rourke was the then monitor? 4 A. Correct, his title was promoter of ministerial 5 6 standards, P-O-M-S. Q. And my question, then, is, do you know what 7 Father Scerbo did with the information that he 8 reported to you that he had? 9 A. I don't know that. 10 Q. Did he make mention to you of the fact that he 11 was going to call the mother of the kid and -- 12 did he tell you that? 13 A. Well, as I think I mentioned earlier, he 14 either told me he was doing that or had done 15 it and I don't remember which it was. 16 Q. And if he hadn't called the mother when he 17 raised this with you and he told you he was 18 going to, why didn't you tell him to tell the 19 mother what you knew by reason of your review 20 of that file and a possible danger to this 21 kid? 22 A. There was no indication on his part that he 23 wanted any input from me about anything. He 24 was simply informing me of what he either was 25 gonna do or -- 86 1 Q. So he didn't -- 2 A. -- or had done. 3 Q. He didn't ask you? 4 A. He did not ask me. 5 MR. HAWS: I also object to the 6 form, it misstates the evidence. 7 BY MR. ANDERSON: 8 Q. And you didn't volunteer it? 9 A. I didn't give him any information at that 10 11 point in time about Father Wehmeyer. Q. If you assume that he had already called the 12 mother, what do you know about what he told 13 the mother? 14 A. I -- the only thing I recall is, is that there 15 -- you know, that he wanted her -- that he 16 either had made her aware or wanted her to be 17 aware that it -- it didn't look right for a 18 priest to be alone with youth, which was 19 consistent with the training that we were 20 providing to everyone. 21 Q. When you used the terms "it didn't look right 22 to be alone with youth," that implies a 23 perception, doesn't it? 24 right? 25 A. It doesn't look Well, I think the same can be true of any -- 87 1 Q. Well, do you agree with that? 2 A. Yeah. Yeah. 3 Q. Okay. Wouldn't you also agree that in 2009, Right. 4 it not only doesn't look right, it's wrong for 5 any priest to be alone with a youth camping? 6 A. And I think that's consistent with what we 7 were providing in training, that priests 8 should not be alone with children, either 9 because of the appearance of impropriety or 10 11 because it might be improper, yes. Q. That given the history of this archdiocese 12 known to you and other officials, it's also a 13 known danger -- 14 MR. HAWS: 15 16 BY MR. ANDERSON: Q. 17 18 Object to the form. -- for priests to be alone with youth? MR. HAWS: A. Object to the form. Well, certainly sexual abuse takes place in 19 the absence of other people, so, yes, it -- 20 it's something that we trained priests like 21 Father Wehmeyer that they should not be doing 22 those kinds of things. 23 BY MR. ANDERSON: 24 25 Q. So after this information came to you from Father Scerbo, you are aware, are you not, 88 1 that Father Wehmeyer continued in ministry 2 without further restriction? 3 A. I don't know about further restriction. I 4 would not have been aware of any restrictions 5 that were placed on him. 6 remained as the pastor of those two parishes. 7 Q. 8 9 And do you know if -- what Scerbo told the mother? A. 10 11 I do know that he I don't, other than I've seen, I think, her description of that in a news report. Q. Knowing what you knew about what Scerbo told 12 you and the history that you knew about this 13 archdiocese and the fact that Wehmeyer was 14 perhaps camping with this youth, do you think 15 the mother should have been told of Wehmeyer's 16 history? 17 A. I can't speculate to that. 18 Q. You're the chancellor, that's not speculation. 19 Shouldn't the mother have been told exactly 20 what the archdiocese knew about this guy and 21 his history? 22 A. It wasn't my function to determine what she 23 should be told. 24 that. 25 Q. Father Scerbo was deciding You're an advisor to the archbishop. Wasn't 89 1 it your function to advise the archbishop of 2 what should be done when there's a risk of 3 harm to children? 4 A. 5 6 question. Q. 7 8 Nobody was seeking my opinion relative to that That's why Scerbo sought you out, he was seeking your guidance about what to do? A. 9 No. He was not. advice. He was not asking for any If he was, quite frankly, I would 10 claim it was attorney/client privilege. 11 Father Scerbo was simply informing me of what 12 he was doing or had done. 13 Q. You're the chancellor. 14 A. I recognize that. 15 Q. And it's your job to report to the archbishop 16 suspicions of dangerous conduct by priests 17 that are brought to you, correct? 18 A. Well, I certainly think the archbishop 19 expected me to share with him if I had 20 concerns about danger to children. 21 Q. The records reflect that Wehmeyer was 22 continued in ministry after you had this -- 23 Scerbo had this conversation with you. 24 25 (Discussion out of the hearing of the court reporter) 90 1 2 BY MR. ANDERSON: Q. Did you provide any guidance to Father Scerbo 3 or the archbishop about warning the parent, 4 the parish or those in it concerning Wehmeyer, 5 now knowing what you knew and what the file 6 reflected? 7 A. 8 Nobody asked me to share anything about any of those questions. 9 MR. HAWS: 10 2009, I assume? 11 MR. ANDERSON: 12 13 And you're referring to Yes, at the time, at this time, yeah. A. Nobody asked me to share anything about 14 anything. 15 BY MR. ANDERSON: 16 Q. Did you share it with anybody? 17 A. I did not. 18 Q. As chancellor, why not? 19 20 It sounds like it is -A. Father Scerbo was simply telling me what he 21 was doing. That was the sole purpose for him. 22 He wasn't seeking my opinion. 23 would never ask me about someone's fitness for 24 ministry. 25 archbishop. They certainly That's the exclusive purview of the So Father Scerbo was simply 91 1 2 telling me the action steps he was taking. Q. But you are advising them on matters of sexual 3 abuse and you're taking calls yourself when 4 the reports are being made, are you not -- 5 A. Well, at -- 6 Q. -- as chancellor? 7 A. At times I did receive calls about matters of 8 9 concern, sure. Q. So it's a part of your job to help handle the 10 safety of children and employ the zero 11 tolerance as promised and to make sure that 12 priests are not posing a risk of harm to kids, 13 correct? 14 A. Well, that would certainly would be true if 15 information was coming directly to me. 16 this instance, Father Scerbo already had the 17 information, he was already embarking on or 18 had embarked on an action plan in terms of 19 what he was gonna do and he was simply 20 informing me of that. 21 do anything or my opinion about anything. 22 think I've said that repeatedly here this 23 morning. 24 25 Q. But in Nobody was asking me to I Scerbo was new on the job, wasn't he, at the time he came to you? 92 1 A. Well, I don't know exactly when this occurred 2 in 2009, but I think he had started as vicar 3 general on July 1st of 2009, so he was there a 4 short period of time. 5 Q. 6 7 So what experience did he have in sexual abuse and handling sexual abuse matters? A. I -- I don't know what he -- what involvement 8 he had prior to being vicar general. I knew 9 he also had a delegate for safe environment 10 and I don't know what he did with Father 11 McDonough in terms of communicating any of 12 this information to Father McDonough. 13 Q. So knowing what you do know and what you did 14 know in 2009 about the problem of sexual 15 abuse, having handled it as chancellor and in 16 your role prior to that, what should Scerbo 17 have done with the information he shared with 18 you? 19 A. I -- I can't -- I can't answer that. I -- I 20 mean, he did whatever he did. 21 what -- you know, what -- all I'm saying is 22 all I know about is what he told me. 23 and which included that he was gonna be 24 talking with Tim Rourke about it. 25 Q. I don't know He -- And Rourke was a monitor, a deacon, was he 93 1 not? 2 A. He was not a deacon. 3 Q. Well, he was a monitor employed by the 4 5 archdiocese to monitor Wehmeyer, correct? A. 6 As I said a moment ago, he's the promoter or was the promoter of ministerial standards. 7 Q. But that's also called a monitor, isn't it? 8 A. Well, that's the function he performed was to 9 10 monitor the guys that were being monitored. Q. And the purpose of monitoring in the case of 11 Wehmeyer was to keep the people and the 12 parishioners safe from harm, correct? 13 A. Well, I think that was the ultimate goal, but 14 the responsibility was to see that a priest 15 adhered to the monitoring plan that was 16 developed for that priest. 17 was on monitoring had a plan. 18 Q. 19 Each priest that But the purpose of monitoring was to keep the people safe, correct? 20 A. Again, that's the ultimate goal, yes. 21 Q. Okay. 22 A. But that's not the only goal. 23 Q. Well, what is it, to protect the priest? 24 A. No. 25 I mean, some guys, for example, were chemically dependent, so that -- 94 1 Q. Well, we're talking about sexual abuse here. 2 A. Well, you didn't limit your question to sexual 3 abuse. Some of the guys were -- were 4 chemically dependent, so part of their action 5 plan was to keep them -- help them maintain 6 their sobriety, the same as -- 7 Q. Was Wehmeyer chemically dependent? 8 A. Was he what? 9 Q. Chemically dependant? 10 A. Not to my knowledge, although he apparently 11 12 had a DIW -- DUI at some point in time. Q. 13 14 He was a sexual addict, as reflected in the file? A. I don't know that he was diagnosed as a sexual 15 addict. 16 at St. Luke? 17 Q. Was that a diagnosis that was reached Sexual compulsion, inability to control his 18 sexual impulses and at one point sexual 19 addiction, yes. 20 A. I -- I don't know that that was the diagnosis. 21 I haven't -- I -- I looked at that report in 22 -- sometime in the middle of 2009, I haven't 23 seen it since then. 24 25 Q. Well, in any case, when you had the conversation with Scerbo, then, did you feel 95 1 confident that he was properly qualified to 2 deal with this in a way that would protect the 3 safety of the child that he had either camped 4 with or was camping with? 5 A. I knew that when Father Scerbo became vicar 6 general, he had obtained a briefing from 7 Father McDonough about various matters. 8 like Father McDonough had briefed Bishop Piche 9 before Bishop Scerbo. Just So Bishop Scerbo, or 10 Father Scerbo at the time, would have known 11 about the monitoring program, he would have 12 known about Father McDonough's work as 13 delegate for safe environment, so it would be, 14 you know, something that Father Scerbo would 15 be familiar with, with what resources were 16 available to him should he choose to avail 17 himself of those resources. 18 Q. The mother of that child reports that Father 19 Scerbo called her and said that, "In today's 20 climate we have to be worried about," the word 21 you used, "the appearance of impropriety and 22 scandal and it doesn't look right for your son 23 to camp with him, with Wehmeyer, and so you 24 should have other adults present." 25 appropriate way for Father Scerbo to have Is that an 96 1 2 dealt with the information? A. Again, I can't speculate as to what might have 3 been the appropriate way for Father Scerbo to 4 have dealt with that situation. 5 that there's a, you know, a hard and fast 6 guideline to that. 7 to both talk with the mother and share with 8 her his concerns, but he also has to take 9 other actions, such as, you know, looking at I don't know He -- he certainly needs 10 what -- how it relates to Father Wehmeyer and 11 his monitoring and -- and other related 12 things. 13 Q. Don't you think the mother had some right to 14 know about what you knew about the review of 15 Wehmeyer's file, that he had a history of 16 sexual addiction, impulse control? 17 A. I don't know what -- you know, I -- I don't 18 want to characterize what should have been 19 shared with the mother at the time. 20 put myself in Father Scerbo's place in terms 21 of what he felt he should do. 22 Q. I can't You're aware that Wehmeyer sexually abused 23 that child and others after that call was 24 made, aren't you? 25 A. I -- I know that Father -- 97 1 Q. He's in prison for it. 2 A. I know that Father Wehmeyer abused a couple 3 youth that he pled guilty to. 4 it's the same child or not. 5 Q. It is. 6 A. Okay. 7 8 I don't know if I don't know -- I don't know that. I didn't know that until now. Q. 9 Having heard that now today and having now reflected on what Father Scerbo told you, 10 either before he made that call or right after 11 it, does that lead you to the conclusion that 12 that mother deserved to know much more than 13 what she was told? 14 A. 15 16 I'm not gonna second guess what he did at this point in time. Q. Do you feel that you had an obligation, as the 17 chancellor, to do more than what you did with 18 the information given you by Father Scerbo and 19 the history you knew both about Wehmeyer on 20 review of the file and the problems in this 21 archdiocese? 22 23 A. No. MR. HAWS: Objection, asked and 24 answered multiple times. 25 BY MR. ANDERSON: 98 1 Q. So after Father Scerbo shared this information 2 with you, what is the next time you had any 3 dealings pertaining to Wehmeyer? 4 A. At some point in time we merged the two 5 parishes, Blessed Sacrament and St. Thomas, 6 and then I can't remember exactly when that 7 occurred, but in the run-up to that, there 8 were some issues that were raised. 9 Q. And tell me what those issues were and did it 10 pertain to the concerns about Wehmeyer being 11 in ministry? 12 A. No. It didn't. 13 Q. Anything to do with safety? 14 A. No. It simply was his capacity to manage the 15 merger and the conflict that would develop 16 among his staff relative to how they would 17 merge the parishes, some people might lose 18 their jobs, et cetera, et cetera. 19 Q. 20 21 And your role was to do what, help guide that, help advise? A. Right, to provide assistance, because if there 22 was gonna be employment-related issues, I 23 would need to address employment-related 24 issues. 25 for seeing that all the documents were I was the one that was responsible 99 1 prepared to accomplish the merger. 2 have to work with the trustees, who would have 3 to vote in favor of that parish merger, along 4 with the archbishop, the vicar general and 5 Father Wehmeyer. 6 to see that the mergers were accomplished and 7 to deal with whatever legal issues might arise 8 out of that merger. 9 Q. We would So I did have responsibility And at that point in time, to your knowledge, 10 had any parishioner in the parish where 11 Wehmeyer was assigned been told about the 12 history known to the archdiocese as reflected 13 in the file or what Father Scerbo had learned 14 about Wehmeyer and the kid and camping? 15 anybody been told about that? 16 A. I don't know that. 17 Q. To your knowledge. 18 been told, correct? 19 MR. HAWS: 20 21 Had Nobody beyond Rourke had Object to the form, misstates his testimony. A. I don't know who else Father Scerbo talked 22 with, other than myself, and he said he was 23 gonna talk with Tim Rourke. 24 Q. Okay. 25 A. Yeah, I'm not aware. I don't -- So the answer is? If there was some 100 1 disclosure made in the parish, for example, 2 I'm not aware of that. 3 Q. So after the merger issues that you just 4 described, what, then, is the next encounter 5 or dealing you had pertaining to Wehmeyer? 6 A. And that would have been in June of 2012. 7 Q. Okay. 8 And you said at that time you received a report of some kind. From whom? 9 A. I -- I received a communication. 10 Q. Yes. 11 A. I'm not gonna tell you that. 12 13 And the communication is from whom? It's attorney/ client privilege. Q. Yeah, but who it comes -- what may have been 14 said maybe, but we have to lay a foundation 15 for this, and first wait, just -- 16 A. Okay. 17 Q. -- listen to the question, in order to see if 18 it is a privileged communication, we have to 19 determine from whom it comes because you can't 20 know until the person who communicates 21 identifies that. 22 as you know, you have to identify who 23 communicated it. 24 just -- 25 A. So to assert the privilege So the first question I, first of all, would disagree with that. 101 1 Q. Okay. 2 MR. HAWS: And I disagree as well, 3 that's just incorrect. 4 BY MR. ANDERSON: 5 Q. 6 So let's just get the question and then we can have the objection if there is one. 7 A. Okay. 8 Q. So first let's get the date. 9 date? 10 A. June 19, 2012. 11 Q. Okay. 12 13 And by what means is this communication made? A. 14 I'm not gonna tell you that, either. It's a communication made to me. 15 MR. HAWS: 16 Because of attorney/client privilege? 17 18 What is the THE WITNESS: A. Yeah. I'm not gonna tell you anything about the 19 communication. 20 BY MR. ANDERSON: 21 Q. What time of day or night? 22 A. Early evening. 23 Q. Can you be more specific? 24 A. I would say somewhere around 5:30, six o'clock 25 in the evening. 102 1 Q. Where were you when you received it? 2 A. In Minneapolis. 3 Q. Doing what? 4 A. I was waiting for a meeting to start. 5 Q. And in what capacity or role? 6 7 chancellor, correct? A. 8 9 You were then I was chancellor for civil affairs at the time, yes. Q. And so I get the legal objection to this, who 10 is the person that communicated information to 11 you at 5:30 on June 19th? 12 A. Well, again, I -- it was -- I didn't say 13 exactly 5:30. 14 I'm not gonna tell you who it was that 15 communicated it to me. 16 It was approximately 5:30 and MR. HAWS: 17 Based on attorney/client privilege? 18 THE WITNESS: Based on 19 attorney/client privilege. 20 BY MR. ANDERSON: 21 Q. 22 23 And you're going to refuse to answer that, the identity of the person that communicated it? A. I will tell you that a person known to me 24 communicated with me, that it was clearly 25 within the attorney/client privilege because 103 1 they were seeking my legal advice about a 2 matter. 3 Q. That's all I'm gonna tell you. How can one determine whether there's an 4 attorney/client privilege unless they know who 5 the communicator is, and then you have to go 6 to the next step to make the determination? 7 A. Well, it's -- 8 9 MR. HAWS: Well, object. That's not for this witness to determine, counsel. 10 That's your issue to raise, if you need to, 11 and research the law on it. 12 raised an attorney/client privilege for his 13 communication. 14 information about how you figure it out. 15 16 This witness has He need not answer further MR. ANDERSON: And your instruction is not answer? 17 MR. HAWS: I'm not instructing him 18 one way or the other. 19 attorney/client privilege. 20 has asserted attorney/client privilege and you 21 don't get to continue to badger him on that 22 issue. 23 MR. ANDERSON: I don't know the Mr. Eisenzimmer Well, I get to ask 24 questions for foundation, if you're going to 25 assert such a privilege, to see if one exists. 104 1 A. 2 3 Well, and that's why I -BY MR. ANDERSON: Q. I just want -- I just want the record here. 4 don't want an argument. 5 record, so let's -- 6 A. 7 8 Q. If you want the record, counsel, you should Okay. So the question is, who and the answer is? A. 11 12 I just want to make a let me answer the question. 9 10 I A person. A human person contacted me, seeking my legal advice. Q. 13 And the means and the manner of that communication? 14 A. I'm not gonna tell you that. 15 Q. And the reason for refusing to answer that is? 16 A. That could potentially lead to the identity of 17 the person who sought my legal advice. 18 Q. The length of the communication, how long? 19 A. I don't know. 20 Q. Best estimate. 21 A. Well, it was less than an hour. 22 Q. The relationship of the person that 23 24 25 communicated to you, what was it? MR. HAWS: BY MR. ANDERSON: Relationship to whom? 105 1 Q. You. 2 A. It -- at that point it was a client. 3 Q. Is it somebody working for the archdiocese? 4 A. I'm not gonna answer that. 5 Q. Do you as a chancellor for the archdiocese It's a client. 6 consider every hierarch in the archdiocese 7 also to be a client if they seek your advice? 8 A. 9 Yes. That's part of my job as the chancellor was to provide legal advice to people within 10 the archdiocese and its parishes, so that's 11 thousands of people. 12 Q. There were predecessors to you as chancellor; 13 Bill Fallon was a lawyer and chancellor, but 14 the prior chancellors were clerics, were they 15 not? 16 A. Correct. 17 Q. Mike O'Connell and Kevin McDonough and -- 18 A. Father O'Connell -- 19 Q. -- Bob Carlson? 20 A. Father O'Connell was never -- 21 Q. He was vicar general I guess. 22 A. He was vicar general and moderator of the 23 curia. 24 Q. So Bob Carlson and Kevin McDonough? 25 A. There was others as well, Tom Vowell. 106 1 Q. Cleric? 2 A. They were all clerics. 3 Q. Did you have discussions prior to your Vowell, V-o-w-e-l-l. 4 appointment with the archbishop that it would 5 be legally wise to have a civil lawyer such as 6 yourself in this position as chancellor so 7 that you could protect these communications 8 from discovery and avoid liability? 9 A. Not at all. 10 (Discussion out of the hearing of 11 the court reporter) 12 BY MR. ANDERSON: 13 Q. 14 15 Did you have such a discussion with the archbishop or anybody else like that? A. No. I -- the change became part of the 1983 16 code of canon law. 17 code, clerics needed to be -- chancellors 18 needed to be clerics. 19 into place, laypersons, including women, could 20 be chancellor. 21 Dominica Brennan was a chancellor, Jennifer 22 Haselberger was a chancellor, Bill Fallon was 23 a chancellor, Andy Eisenzimmer was a 24 chancellor, Joe Kueppers is a chancellor. 25 Q. Prior to that, the 1917 After the '83 code came So, for example, Sister Did you tell this person, who you refuse to 107 1 identify, that communicated with you 2 concerning Wehmeyer that he or she is a 3 mandated reporter and needs to report this? 4 A. I'm not gonna tell you what I told my client, 5 that's the advice, that's what's privileged 6 under the statute. 7 Q. 8 9 the mandated reporter? A. 10 11 Do you know if this person made a report as Again, I'm not gonna tell you anything I learned from this client. Q. Well, I'm talking about independent of what 12 you learned from that person. 13 that person ever made a report to law 14 enforcement? 15 A. I don't know that. Do you know if If we're talking about 16 from sources other than the client, I don't 17 know that. 18 Q. Was Wehmeyer reported to law enforcement? 19 A. Was it? 20 Q. Was Wehmeyer reported to law enforcement? 21 A. He was. 22 Q. When? 23 A. On June 20th. 24 Q. By whom? 25 A. Deacon Jon Vomastek. 108 1 Q. By what means? 2 A. Telephone. 3 Q. At what time? 4 A. Approximately five p.m. 5 Q. And to whom did he make such a report? 6 A. I believe it was to a watch commander named 7 Axel, A-x-e-l. 8 Q. What did he communicate? 9 A. That he was reporting the priest that he 10 apparently had given Commander Axel a heads-up 11 on earlier. 12 Q. And what information did he report? 13 A. I'm not certain of that because I think later 14 that evening Deacon Vomastek, I think, had 15 some e-mail communication with Commander Axel, 16 too. 17 MR. KINSELLA: 18 video record to change media. 19 (Recess taken) 20 MR. KINSELLA: 21 record 12:18 p.m. 22 BY MR. ANDERSON: 23 Excuse me, off the Q. Back on the video How did Vomastek get the information that 24 there was a suspicion of childhood sexual 25 abuse that required such a report? 109 1 A. 2 I don't believe it required a report. We reported it voluntarily. 3 Q. Okay. When you say "we," who is the we? 4 A. The archdiocese. 5 Q. Who in the archdiocese is the we? 6 A. Well, I gave the information to Father -- to 7 Deacon Vomastek and he reported it to the 8 police. 9 Q. What did you tell Vomastek? 10 A. Well, I talked with him at various times 11 throughout that day of June 20th. 12 Q. How many times? 13 A. Two, three, four, five. 14 Q. Walk through what you told him and the order 15 in which you told it and the events as they 16 unfolded on that day of June 20th. 17 A. Well -- 18 Q. -- between yourself and Vomastek. 19 A. Just the two of us or you want it -- the 20 entire chronology? 21 (Discussion out of the hearing of 22 the court reporter) 23 BY MR. ANDERSON: 24 25 Q. I'm going to walk you through that, but before I do, let's go back to the 19th. 110 1 A. Okay. 2 Q. And on that day at 5:30, after you received 3 the call from the person whom you refused to 4 identify and refused to identify the contents 5 of and/or any other details on the assertion 6 of privilege, what did you do? 7 A. First of all, I didn't say it was a call. 8 Q. Okay. 9 A. And I didn't say it was 5:30. 10 Q. Approximately 5:30. 11 A. Right. 12 Q. Okay. 13 A. Okay. 14 Q. Directing your attention to June 19th, 15 Well, let's just say communication. Let me rephrase the question. approximately 5:30 -- 16 A. Okay. 17 Q. -- you received a communication -- 18 A. Correct. 19 Q. That you're claiming a privilege? 20 A. Yes. 21 Q. Correct? 22 A. Correct. 23 Q. What did you -- what action, if any, did you 24 25 take responsive after that? A. I communicated to two of my colleagues, Father 111 1 Kevin McDonough and Jennifer Haselberger, that 2 we may have a situation involving a charter 3 offense by a priest who is in active ministry 4 and that we would likely need to report it 5 immediately and remove the priest from his 6 position. 7 Q. 8 And you communicated that to both Haselberger and to McDonough? 9 A. Yes. 10 Q. And by what -- 11 (Discussion out of the hearing of 12 the court reporter) 13 BY MR. ANDERSON: 14 Q. Was what was your -- was your only source of 15 -- was the privileged communication your only 16 source of information for having made that 17 report to Haselberger and McDonough? 18 A. Yes. 19 Q. And a charter offense means sexual abuse of a 20 minor by a priest, doesn't it? 21 A. That's one of the charter offenses, yes. 22 Q. Well, in this case, that's the charter offense 23 you're referring to that you reported to 24 Haselberger and McDonough, correct? 25 charter offense, correct? We have a 112 1 A. I'm thinking about that a minute. Again, I 2 don't want to get into the substance of the 3 communication I had with my client, but when I 4 said charter offense, my intent there was to 5 communicate that it involved sexual abuse of a 6 minor. 7 Q. 8 9 Right. In fact, you said that the victim was a minor? A. I don't know that I said that. I said a 10 charter offense by an active priest or 11 something like that or a priest in ministry. 12 Q. You communicated to Haselberger and/or 13 McDonough that it will need to be reported 14 immediately, did you not? 15 A. 16 Correct. (Discussion out of the hearing of 17 the court reporter) 18 BY MR. ANDERSON: 19 Q. Did you document that June 19th communication? 20 A. I believe -- I believe that it was by e-mail, 21 so there likely is an e-mail that would 22 document that. 23 (Discussion out of the hearing of 24 the court reporter) 25 BY MR. ANDERSON: 113 1 Q. 2 3 I'm talking about the earlier one with the client. A. 4 No. I did not prepare a memorandum of that conversation. 5 Q. Of any kind? 6 A. Of any kind. 7 Q. No notes? 8 A. No. 9 Q. After you reported that there is a charter I did not take notes. 10 offense, that is, the sexual abuse of a minor 11 in this case, it was by Wehmeyer, correct? 12 A. I did not communicate that -- the identity of 13 the priest to Father McDonough or Jennifer 14 Haselberger at that time. 15 Q. Why not? 16 A. I didn't think it was appropriate to do it by 17 e-mail at that point in time. 18 simply inquiring of their availability in the 19 morning so that we could take the steps 20 necessary that we needed to take. 21 Q. Why not appropriate by e-mail? I -- I was I mean, you 22 have a charter offense, that is, an adult 23 priest suspected of abusing a minor; isn't the 24 identity of the priest who is the possible 25 offender the most important thing 114 1 2 communicated? A. No. I was simply determining their 3 availability in the morning to -- to work with 4 me to deal with what we needed to do and 5 decide what we needed to do. 6 Q. So at that point in time, Haselberger and 7 McDonough are not informed by you that 8 Wehmeyer is the subject of -- 9 A. And that's correct, in part, that was covered 10 by whatever privilege I had with the person 11 who had communicated with me. 12 Q. Did you tell Haselberger and McDonough you 13 couldn't tell them more because of some kind 14 of privilege you're asserting here today? 15 A. 16 17 No. I simply put in an e-mail, I believe, what I said. Q. Have you asserted with Kevin McDonough or 18 Jennifer Haselberger some kind of privilege, 19 attorney/client privilege like you asserted 20 with us here today? 21 A. No. That hasn't been necessary. 22 Q. Why hasn't it been necessary with them? 23 A. Because I -- I haven't shared with them the -- 24 the contents of the communication I had with 25 the client. 115 1 (Discussion out of the hearing of 2 the court reporter) 3 BY MR. ANDERSON: 4 Q. 5 Did you tell them -- ever tell Haselberger or McDonough the identity of the client? 6 A. The identity of the client? 7 Q. Yes. 8 A. No. 9 Q. That communicated to you? 10 A. No. 11 Q. As chancellor, are you allowed to represent 12 I -- no. I think -- no. I did not. priests? 13 A. Assuming there's not a conflict, yes. 14 Q. So you provided the e-mail on the evening -- 15 what was the date of the e-mail to Haselberger 16 and -- 17 A. June 19th, it was a Tuesday, 2012. There's -- 18 there's been a lot of confusion, counsel, and 19 I'll point this out to you because it might be 20 helpful. 21 confusion about the chronology here, I -- I 22 think part -- in part, from what I understand, 23 your client may be confused about the 24 chronology. 25 in his deposition about the chronology and I I think there's been a lotta I know Father McDonough was wrong 116 1 believe the archbishop is wrong about the 2 chronology. 3 the chronology. 4 Tuesday. 5 Q. 6 7 I will tell you I am certain of So it was June 19th, it was a So first tell me how is McDonough wrong about the chronology? A. I think that Father McDonough used a date of 8 June 21st as when it was reported to the 9 police or something like that. I'm not -- I'm 10 not sure what it -- there was a mistake in his 11 deposition and in his testimony. 12 Q. 13 14 And how is the archbishop wrong about his chronology? A. Because I think the archbishop used June 22nd 15 or something like that in his deposition. 16 Then, of course, there's a question of the 17 date of the decree he signed. 18 Q. First let's get the date of the report. So 19 are you saying that they are wrong about the 20 date of the report made? 21 A. I don't know -- I don't recall what they 22 testified. 23 that I had Father -- Deacon Vomastek make was 24 made on June 20th. 25 Q. I can tell you that the report And was McDonough involved in the conversation 117 1 with Vomastek before he made the report? 2 A. No. 3 Q. Who else was involved besides you? 4 A. No one, that I'm aware of. 5 Q. Was the archbishop consulted? 6 A. At some point the archbishop was informed, but 7 I don't know if someone informed him of -- or 8 I shouldn't say that. 9 was informed by me at some point in time. I know the archbishop I 10 don't know who might have informed him of what 11 prior to the time I talked to the archbishop. 12 Q. When was the archbishop informed and by whom? 13 A. I don't know that. I assume -- I assume that 14 on the 20th, Father Laird was in communication 15 with the archbishop. 16 the 20th or the 21st, I talked to the 17 archbishop. At some time on either 18 Q. What did you tell the archbishop? 19 A. That we either had or were reporting sexual 20 abuse to the police -- 21 Q. And what was -- 22 A. -- by one of his priests. 23 Q. What was the source of the information? Did 24 you tell Archbishop Nienstedt the source of 25 the information that caused you -- 118 1 A. No. 2 Q. Did you tell him it was Wehmeyer? 3 A. At some point I would have communicated it was 4 5 Father Wehmeyer. Q. 6 Well, would you withhold that information from him? 7 A. No. 8 Q. So you told him you were reporting Wehmeyer? 9 A. At some point I would have told him it was 10 Not at all. Wehmeyer. 11 Q. Well, at your first conversation about this? 12 A. I don't know that I -- I don't know that I 13 told him that in the first conversation. 14 Q. Why would you withhold that? 15 A. I wouldn't have withheld it. 16 Q. Well, then why do you say you might have? 17 A. Because he would have either already been 18 aware of it or I wasn't free to disclose it to 19 him at the first conversation because I'm not 20 certain exactly when I had my first 21 conversation with him about it. 22 Q. Which is it? 23 A. I don't know. 24 Q. Is this -- I mean, why are you confused about 25 I don't recall. something as important as making a report and 119 1 2 when you made it and -A. 3 4 a report to the police. Q. 5 6 I don't -- I'm not confused about when I made Well, you're confused about what you told the archbishop and when you told him. A. Well, right. 7 MR. HAWS: 8 9 And, counsel, you're arguing with the witness. A. I don't recall exactly what I needed to tell 10 the archbishop because I -- I -- I don't 11 recall what he already knew when I began 12 talking with him. 13 BY MR. ANDERSON: 14 Q. 15 16 Well, when you first talked to the archbishop, what did you tell him? A. I -- just confirming the fact that we had 17 reported something or were preparing to report 18 something to the police. 19 Q. Okay. 20 A. No. 21 Did he act surprised? Because I think he was already aware of what was unfolding. 22 Q. Okay. And who made him aware -- 23 A. I don't -- 24 Q. -- that it pertained to Wehmeyer? 25 A. I don't know that. I'm assuming that it was 120 1 Father Laird, but I don't know that for 2 certain. 3 Q. Okay. And you testified that he was already 4 aware because of the way he acted, so you 5 could tell that he already had been informed? 6 A. Yeah. At some point in time on the 20th, he 7 also had been reviewing, I assume, some 8 decrees drafted by Jennifer Haselberger. 9 Q. 10 Were you aware that she was drafting decrees for his signature? 11 A. (No response). 12 Q. That was a decree for investigation, right? 13 A. I don't know that I was aware of the decree 14 for investigation. 15 that was gonna impose restrictions on 16 Wehmeyer. 17 Q. 18 There was a second decree I was aware of that decree. Did you make any notes of the conversation with Archbishop Nienstedt? 19 A. No. 20 Q. How many conversations did you have at around 21 that time with him about the Wehmeyer matter 22 and whether it should be reported or had been 23 reported? 24 25 A. I -- I only recall one conversation with him and -- 121 1 Q. And where were you when you had that? 2 A. I believe it was in his office. 3 Q. And who else was there? 4 A. No one. 5 Q. And what was the date of that? 6 A. Again, I -- it was either the 20th or 21st, I 7 don't know which. 8 Q. Did he take notes? 9 A. Best of my knowledge, he would not have. 10 Q. And it was evident to you that he already had 11 been looking at or had already made a decree 12 concerning Wehmeyer? 13 A. Yes, that -- that he -- yes, it was my 14 assumption that he had already seen a decree 15 because it -- there was the conversation about 16 what we would need to do to remove the priest 17 and that my assumption was that he had already 18 talked with Father Laird more than likely, 19 too. 20 Q. And did you get any indication about him 21 having any other source of information about 22 Wehmeyer, other than from Father Laird? 23 A. 24 25 No. I don't -- no. I wasn't aware that he had information from anyone else. Q. Okay. So -- 122 1 A. He didn't impart any information to me. I 2 simply reported to him where we were at, it 3 was basically a status update on something 4 that someone had already made him aware of. 5 Q. 6 7 Okay. And so tell us what you told him and then what he told you. A. Again, I told him that we -- we either were 8 preparing to report it to the police and were 9 waiting for an event to happen so that we 10 could do that or that we already reported it 11 to the police. 12 whether I talked to him on the 20th or 21st. 13 Q. 14 15 And, again, it depends on What was the event you were waiting to have happen? A. Greta Sawyer was gonna have a meeting on the 16 afternoon of the 20th with the victim's 17 mother. 18 Q. Why would you and the archbishop wait for such 19 an interview with the victim and/or the mother 20 before a report would be made? 21 A. Because we had no non-privileged information 22 that would allow us to report until we got the 23 information from the mother to allow us to 24 report. 25 Q. The archbishop's not a lawyer, he doesn't have 123 1 2 a privilege? A. Right. But -- but I was bringing the 3 information and it was in a -- it was in a 4 privileged fashion. 5 Q. 6 7 Laird doesn't have a privilege, he's not a lawyer, right? A. Right -- oh, actually, he is a lawyer. I 8 don't know if he's admitted to practice, but 9 he's a trained lawyer. 10 Q. 11 But he wasn't operating as a lawyer in his capacity as the vicar general? 12 A. Correct. 13 Q. He was operating as the vicar general and a 14 mandated reporter, correct? 15 A. Yeah. 16 Q. Okay. Who made the decision to interview the 17 mother and the victim before the law 18 enforcement were to be notified? 19 A. 20 I don't know that. (Discussion out of the hearing of 21 the court reporter) 22 BY MR. ANDERSON: 23 Q. How did you find out about that decision? 24 A. The decision to interview the mom? 25 Q. And the victim, the kid. 124 1 A. 2 Okay. I never learned that the kid was gonna be interviewed. 3 Q. Then the mom. 4 A. I learned that Greta Sawyer was meeting with 5 the mom the afternoon of June 20th. 6 (Discussion out of the hearing of 7 the court reporter) 8 BY MR. ANDERSON: 9 Q. 10 Have you seen any notes or recordings of Greta Sawyer's interview? 11 A. I have not. 12 Q. Do you believe that she conducted such an 13 14 interview? A. 15 I know she met with the mother, that's all I know. 16 Q. And -- 17 A. Well, I -- excuse me. I know some of the 18 substance of that meeting, but all I know is 19 she met with the mother. 20 aware that she met with the child as well. I didn't -- was not 21 Q. What were you told about that? 22 A. About what? 23 Q. Greta Sawyer's meeting with the mother. 24 A. I just knew that Greta was meeting with the 25 mother. 125 1 Q. 2 You said you knew something about the substance of it. What did you know? 3 A. Oh, what substance did I learn? 4 Q. Yes. 5 A. That the mother was agreeable that we could 6 report Father Wehmeyer to the police as having 7 abused her child. 8 Q. 9 What communications on June 19th and 20th and at the time you talked to -- did you learn 10 that the mother had reported to John Paul 11 Erickson? 12 A. I can't answer that. 13 Q. Why not? 14 A. As I told you, I received a privileged 15 communication on the evening of the 19th. I 16 alerted Father McDonough and Jennifer 17 Haselberger. 18 contacted Greta Sawyer and said, "Are you 19 meeting with somebody to talk about matters 20 that pertain to abuse?" 21 And I said, "We need to report that, and if 22 you can get the mother to allow us to report 23 it to the police, we can do that immediately." 24 And that's what Greta did, she met with the 25 mother. On the morning of the 20th, I And she said yes. I didn't know the woman's identity. 126 1 But Greta got the green light for us to report 2 it, which permitted me, then, to go back to 3 Father -- or Deacon Vomastek and say, "Call 4 the police." 5 Q. And do you to this day know what exact -- what 6 Vomastek actually reported to law enforcement 7 the first time contact was made? 8 A. 9 I know he left a voicemail message for Commander Axel. I don't know that I know the 10 substance of that. 11 seen an e-mail exchange later that evening 12 with -- with providing him with phone numbers 13 and stuff, but the -- the e-mail that I've 14 seen was redacted, so I don't know what 15 information was in that. 16 got a copy of that e-mail. 17 Q. 18 19 And then I believe I've I never -- I never You said you had five or more conversations with Vomastek that day. A. No. Why so many? I said two, three, four, five, I'm not 20 sure exactly how many. Well, first of all, 21 because of the privileged nature, I knew we 22 wanted to -- to find a means to report it 23 because I couldn't report it based upon the 24 privileged communication. 25 learned that Greta was meeting with the And so when I 127 1 mother, I thought, this is the way we can get 2 it reported if Greta can get the mom's 3 permission to report it. 4 understanding that the mom was reporting it to 5 someone that, according to Greta, was in a 6 pastoral relationship. 7 she allow us to report it?" 8 "Secondly, the priest likely will be -- need 9 to be removed from the parish. Because it was my So I said, "Well, will And I also said, Is that gonna 10 create some problems for her if we remove the 11 priest from the parish right away?" 12 Q. 13 Are you certain that Greta Sawyer met with the mother on June 20th, rather than June 19th? 14 A. Yes. 15 Q. What -- 16 A. Now, wait. 17 Q. -- makes you certain of that? 18 A. Well, I'm not saying there was not a meeting 19 on the 19th, there could have been a meeting 20 on the 19th that I don't know about. 21 know that I talked with Greta Sawyer on the 22 morning of the 20th, she said that she had a 23 meeting, and I believe it was three o'clock 24 that afternoon. 25 instructions I just described about getting But I I then gave Greta the 128 1 mom's permission to report this to the police. 2 I later conferred with Greta Sawyer and she 3 confirmed that mom gave us the green light to 4 report it to the police, so I had Deacon 5 Vomastek call the police. 6 Q. 7 8 How many meetings were there between Sawyer and the mother? A. 9 I don't know that. I believe that Greta had been talking to the mother earlier about a 10 matter that was unrelated -- well, I shouldn't 11 say unrelated -- that -- that involved some 12 problem between her children, some 13 interfamilial problem, and so I believe the 14 mom had been talking to Greta about that. 15 I don't know what meetings Greta had prior to 16 the one on the 20th. 17 the morning of the 20th that she was meeting 18 with the mom that afternoon. 19 Q. 20 I learned from Greta on Is Jennifer Haselberger a mandated reporter, as you understand the law? 21 A. No. 22 Q. You're not a mandated reporter, as you 23 But understand the law? 24 A. Correct. 25 Q. Kevin McDonough is a mandated reporter? 129 1 A. 2 He can be a mandated reporter if he receives information that's not privileged. 3 Q. Not received in the priest/penitent? 4 A. Right. 5 Q. Archbishop Nienstedt a mandated reporter? 6 A. With the same condition, if it's 7 non-privileged. 8 Q. Laird a mandated reporter? 9 A. Again, if it's non-privileged. 10 Q. Erickson a mandated reporter? 11 A. As a cleric, he would be a mandated reporter 12 if he received information in a non-privileged 13 setting. 14 MR. ANDERSON: 15 lunch break? 16 MR. KINSELLA: 17 (Recess taken) 18 MR. KINSELLA: 19 record, 1:30 p.m. 20 BY MR. ANDERSON: 21 Should we take a Q. All right. Off the video record. Back on the video Back on Wehmeyer. And when I 22 looked at some documents, there were some 23 e-mails between you and Jennifer Haselberger 24 on June 19th, right? 25 A. Well, one can say that about just about every 130 1 day with Jennifer Haselberger. 2 Q. Concerning the Wehmeyer situation. 3 A. Well, again, as I described, on the evening of 4 the 19th, I believe I sent her an e-mail that 5 said we had a possible charter offense by an 6 active priest and we'd have to report it and 7 remove the priest. 8 Q. 9 And then on the 20th is when you said that you had the conversations with Vomastek, right? 10 A. Correct. 11 Q. And on the 20th, why don't you walk us through 12 what you did on the 20th responsive to the 13 Wehmeyer situation and what needed to be done? 14 A. Okay. On the 20th, I talked with Greta Sawyer 15 and learned that she was gonna be talking with 16 the mother. 17 that would allow us to report it to the police 18 if the mother was willing to the allow that. 19 So I urged Greta to get the mother's consent 20 to that. 21 Q. 22 And so my feeling was, is that What made you think it hadn't already been given by the mother? The mother reports -- 23 A. I -- I had -- 24 Q. -- that she had made a report? 25 A. I had no information about that. I mean, I've 131 1 -- I've seen subsequent news reports saying 2 that she was advised to report it to the 3 police, but I had no information suggesting it 4 had been reported to the police with this 5 exception. 6 20th, the impression I got was that the mom 7 had been talking with Greta or somebody, I 8 don't know for certain who, about one child 9 being involved with another child. When I talked with Greta on the And I -- I 10 understood that Greta had helped the mom do 11 something about that, report it to 12 Neighborhood House or some agency that was 13 gonna help them. 14 some quick background, which wasn't 15 necessarily relevant to what I was dealing 16 with, but apparently that was part of the 17 trigger that resulted in mom learning that her 18 son had been abused by Wehmeyer. 19 So Greta kind of gave me So when Greta gave me the 20 information about the earlier incident and 21 that she was gonna be talking with mom, and I 22 said, "Well, is mom gonna identify some abuse? 23 I want to get mom's permission to report that 24 and also talk to mom saying, 'We're gonna have 25 to move Father Wehmeyer out of the parish more 132 1 than likely, and will that create some 2 problems for her?'" 3 Q. 4 5 Just a moment. Greta already knew there had been abuse before she interviewed the mom? A. I don't know. No. She -- she knew that -- 6 she knew there was something between the two 7 children, but she hadn't talked to the mom, to 8 my -- the way Greta was telling me, about any 9 abuse by Wehmeyer, so -- 10 Q. Okay. So -- 11 A. So I asked Greta, then, you know, "When are 12 you meeting?" "This afternoon." So I told 13 Greta what I wanted her to get from the mom. 14 I said, "Let me know once you've had that 15 meeting so we can report it to the police if 16 mom's willing to allow us to do that." 17 so following that, then, I talked with Deacon 18 Vomastek because I wanted to make sure that we 19 got it reported to somebody in the police 20 department who would do something with it, 21 rather than just clear it without taking any 22 action. 23 point in time had been on the sex crimes unit. 24 I said, "So who can we get this to?" 25 said, "You know, I've got the guy." So -- So I -- and Deacon Vomastek at one So he I said, 133 1 "Can you give him a heads-up that we might be 2 reporting this?" 3 Deacon Vomastek that -- late that morning was 4 gonna call somebody to let them know that if 5 we got the green light, we were gonna get them 6 that information as soon as we could. 7 Q. 8 So my understanding was, So did you tell Vomastek that you had a mandatory report of sexual abuse -- 9 A. No. 10 Q. -- that needed to be made? 11 A. No. Because at that point in time there was 12 no mandatory report of abuse that needed to be 13 made. 14 Everything was privileged. So, then, that afternoon, after 15 Greta met with the mom and gave us the green 16 light to report it, I, then, went back to 17 Vomastek late that afternoon, right before 18 five o'clock, and said, "Make the call. 19 Here's the information. 20 he made the call. 21 understanding, although -- Make the call." And And then it's my 22 Q. And he reported what? 23 A. I -- I don't know. He left information for 24 this -- I think it was Commander Axel. 25 don't know exactly what information he I 134 1 2 provided to them. Q. So is it your belief that an actual report of 3 abuse identifying the offender and the 4 necessary information had been made on that 5 date by Vomastek? 6 A. Well, he reported the information, whatever he 7 had that I had given him and that -- he -- he 8 was already familiar, apparently, with the 9 earlier situation involving the children. 10 don't know how Deacon Vomastek was aware of 11 it. 12 Q. I'm talking about the abuse of the kid now. 13 A. I know that. I But it -- but it's a necessary 14 prerequisite to that because, apparently, 15 sometime earlier, Vomastek had been in touch 16 with the same watch commander about the 17 involvement of the two children. 18 talked to the commander about that in some 19 fashion. 20 Q. Okay. He had Listen to this question now, listen to 21 this question. 22 Vomastek made the report, as required by law, 23 on the 20th of the -- 24 25 A. Is it your belief that Is it -- is it my belief that he made that report? 135 1 Q. Yes. 2 A. Yes. 3 Q. And what information did he report on that 4 5 date that makes you believe it was made? A. 6 I -- I believe he provided the name of the priest and the name of the mother. 7 Q. On the 20th? 8 A. Yes. 9 Q. And he got that information from whom? 10 A. And that's what I was just trying to explain. 11 Q. No. 12 A. Well, part of it he got from me, but part of 13 14 Who did he get that information -- it he already knew. Q. 15 16 No. Then my question is, what did you tell Vomastek? A. That -- that the mother was claiming that 17 Father Wehmeyer had abused one of her 18 children. 19 Q. And where did you get that information? 20 A. Greta. 21 Q. You had been involved with the Montero 22 situation before and you were aware that in 23 the case of Montero, McDonough had 24 specifically talked to the police about 25 contacting the offender, Montero, before the 136 1 police investigation? Were you aware of that? 2 A. I'm not sure I'm following the question. 3 Q. Okay. 4 A. Okay. 5 Q. Going back to the 20th, then -- 6 A. As far as I know, Father McDonough never Never mind. 7 talked to Montero before he talked to the 8 police. 9 Q. Well, we'll go back there. 10 A. Okay. 11 Q. I digressed for a minute. 12 Okay. So Vomastek makes the report, 13 as you understand it, based on information you 14 gave him and what was the other source of the 15 information that you based it on? 16 A. He had some knowledge from someplace before 17 about the two kids, so he knew the -- he knew 18 the mother, he knew who she was or something. 19 Q. I'm just trying to get from you, besides you 20 being the source of the information, who else 21 was the source of the information upon which 22 Vomastek is now making a report you believe 23 was made on the 20th? 24 25 A. Well, as to the allegation against Wehmeyer, he was only getting that part of it from me. 137 1 But he was already aware of something 2 involving that family and the two children. 3 don't know where he got that. 4 Q. Okay. I So as far as you know as to Wehmeyer, 5 he had no other information source, other than 6 you? 7 A. Correct. 8 Q. So what happened on the 20th then? 9 A. He made the call and I, then, informed -- 10 Q. Were you there when he made the call? 11 A. Yeah, but I wasn't -- I wasn't necessarily 12 13 listening to him. Q. I was around his office. Did he actually tell somebody that he had to 14 make a report as mandated and that Wehmeyer 15 was the offender and he had credible 16 information? 17 A. As I said, I had asked him to give the police 18 a heads-up earlier that we'd be making this 19 report. 20 "I'm calling about the matter we discussed 21 before, I left a message for you before," 22 something along those lines. So when he called, I think he said, 23 Q. So did he actually talk to the investigator? 24 A. I don't know that. 25 He may have been leaving a voicemail message, I'm not certain of that. I 138 1 think he had the commander's cell phone 2 number. 3 Q. And you were present when he was -- 4 A. Well, I was around, but I wasn't just standing 5 6 there listening to every word he was saying. Q. Who else was engaged in the decision and the 7 conversation that he had with the police, 8 besides yourself? 9 A. Just me. 10 Q. Okay. 11 A. I mean, I had informed Father Laird that we 12 would be making a report as soon as we got the 13 green light from Greta. 14 Q. 15 16 And had Haselberger and McDonough been told also this was going to be happening? A. They knew that as soon as we got the okay from 17 Greta that the mom would -- had given her the 18 okay, that we would be reporting it. 19 Q. 20 Were you in direct contact with Haselberger at that time? 21 A. Yeah, her office is just right near mine. 22 Q. Was she urging a report be made before it was 23 24 25 actually made? A. At some point she questioned when we needed to make a report or by -- if there was a 139 1 deadline. And -- and I said something about 2 -- I can't remember how I responded to her. 3 She -- she asked -- 4 Q. You said, "It can wait"? 5 A. You what? 6 Q. You said, "It can wait"? 7 A. Well, I think she was asking whether we needed 8 to make it on the 19th or the 20th and I said, 9 "Tomorrow is fine," or something like that. 10 Q. So on the 20th, any other interactions 11 pertaining to Vomastek making the report and 12 your involvement in it? 13 A. Once I knew Vomastek had made the report, I 14 think I then sent an e-mail, probably just to 15 Father McDonough, although it's possible that 16 I could have copied Jennifer Haselberger as 17 well. 18 the matter had been reported to the police and 19 that we would need to remove Father Wehmeyer 20 the following day and would he be available to 21 do that. 22 during that day because we were meeting with 23 Father Laird and letting him know what we were 24 doing, and Jennifer, I think, was preparing 25 some decrees, so there was other things But I informed Father McDonough that I mean, there was other interactions 140 1 happening that day as I was waiting for Greta 2 to have this meeting to -- to allow us to 3 report it. 4 Q. 5 6 Were you the one making decisions on behalf of the archbishop in connection with this? A. Well, I can't say that I was making the 7 decisions. I was informing Father Laird 8 beginning on the evening of the 19th what I 9 was doing and we got no indication from him 10 that he wanted me to do anything different 11 than what I was doing. 12 Q. 13 14 You put a litigation hold on this matter on June 21st, didn't you? A. 15 I don't know that. I'm not certain that. Is there a document or some source for that? 16 Q. Yes. 17 A. What? 18 Q. There's a document that says, "Andy is going 19 to issue a litigation hold for Father Curtis 20 Wehmeyer personnel file." 21 A. Is going to? 22 Q. Yes. 23 A. So that means I hadn't yet done it? 24 Q. That's right. 25 A. Okay. 141 1 Q. Why would you be putting a litigation hold? 2 Why would you be doing that? 3 be destroyed." 4 order not to destroy documents? 5 A. 6 7 Why would you be issuing an We would, first of all, never destroy documents. Q. 8 9 It says, "Cannot Then why would you be issuing an order not to do it if you -- A. Okay. Counsel, I haven't seen an order that I 10 issued saying there's a litigation hold and 11 don't destroy documents, I haven't seen that. 12 So if you can show me that, I'll review it. 13 But I don't recall issuing any kind of 14 litigation hold regarding Father Wehmeyer at 15 any point in time. 16 all -- Now, litigation holds are 17 Q. Did you tell anybody that? 18 A. I don't -- I don't recall that, no. In fact, 19 Jennifer Haselberger is the one that typically 20 would discuss the -- our need to do litigation 21 holds. 22 to our archivist to -- So if there's an e-mail or something 23 Q. I'm just asking -- 24 A. Yeah, I don't -- I don't recall. 25 I don't think I put a litigation hold on anything. 142 1 Q. Do you deny issuing a litigation hold? 2 A. Since I don't recall it, I'm -- I'm gonna deny 3 it, yes, until presented with a document to 4 the contrary, then I'll re-evaluate my 5 response. 6 Q. 7 8 destroy documents? A. 9 We didn't have to issue such an documents. Q. 12 13 No. instruction because we don't destroy 10 11 Do you recall issuing any instruction to not Do you recall suggesting that the matter be kept quiet? A. No. I would not have. We were gonna remove 14 -- we were gonna remove the pastor and 15 announce it to the parish and that's exactly 16 what we did. 17 met with the trustees, we removed the pastor 18 and made an announcement that weekend. 19 Q. I went out with Father Laird, McDonough went out and met with Wehmeyer 20 before the law -- the police officers could do 21 that. 22 A. Why was that permitted? Jennifer issued -- or had -- Jennifer 23 Haselberger drafted the decrees and -- and 24 indicated that they needed to be served on 25 Father Wehmeyer when he was removed. 143 1 Q. Did you, knowing what you know as the 2 chancellor and having worked in this area as 3 long as you had, did you say, "No. 4 out there and interview Wehmeyer and tip him 5 off before the police can get out there and 6 interview him, seize the evidence and do what 7 they had to do"? 8 A. 9 He as pastor. Q. 12 13 He didn't go out there to interview him. went out there to serve a decree removing him 10 11 Don't go Well, that's what you call it, but he went out there and interviewed him, didn't he? A. No. I don't think he did. That isn't -- 14 wasn't his testimony in his deposition, the 15 way I read it. 16 Q. He said he and Vomastek went out there and 17 talked to him for an hour and told him the 18 police were coming. 19 A. Well, they served the -- 20 MR. HAWS: 21 testified. 22 with him for an hour. 23 A. He testified to what he I don't think he said he talked They served the decree on him and apparently 24 seized his gun and a computer. 25 BY MR. ANDERSON: 144 1 Q. So why -- why was it -- why was he directed to 2 have seized his gun before the police got 3 there? 4 A. 5 6 the gun from him. Q. 7 8 I don't know anything about why they obtained Why was he directed to have seized the computer before the police could get there? A. 9 And, again, I think Jennifer Haselberger was the one that said, "Get his computer." 10 Q. The -- 11 A. So you'll have to ask her that. 12 Q. Well, there's some records that indicate the 13 archbishop had directed Father McDonough to 14 get the gun; and what do you know about that? 15 A. Nothing. I -- I had no knowledge of any 16 directives from the archbishop about Wehmeyer 17 through that entire period of time. 18 (Discussion out of the hearing of 19 the court reporter) 20 BY MR. ANDERSON: 21 Q. Well, you had a meeting with Jennifer 22 Haselberger, Kevin McDonough, yourself, I 23 think -- who else was in attendance at that 24 meeting before McDonough went out there? 25 A. There was a variety of us meeting all during 145 1 the 20th and again on the 21st regarding these 2 matters. 3 there on the 20th, but he was there on the 4 21st because he's the one that went with 5 Father Vomastek -- excuse me, Deacon Vomastek 6 to serve the decree on Father Wehmeyer. 7 Q. 8 Right. I don't think Father McDonough was So he indicated that there was a meeting, you were in attendance. 9 A. On the 21st? 10 Q. Well, there was a meeting in attendance before 11 he went out there. 12 he was going to go out there for whatever 13 purpose before the police could, say, "Hey, 14 don't do that? 15 police investigation"? 16 A. And did you, knowing that That's getting in the way of a Just the opposite, counsel. We had informed 17 the police that we were gonna remove him and 18 it's my understanding that Deacon Vomastek 19 called the police as they were going out 20 there. 21 beginning the evening of the 20th and again 22 the 21st. 23 Q. 24 25 So the police were given a heads-up So what did Vomastek tell the police as they were going out there? A. Well, I don't know exactly what he told them 146 1 because I wasn't there, but he -- 2 Q. Then why -- 3 A. -- he called the police. 4 Q. Why do you make such an assertion that you 5 6 weren't there and you can't testify to that? A. Because he told me, he called the police on 7 his way to serve the decree on Wehmeyer. And 8 there's also an e-mail trail from the evening 9 of the 20th where Vomastek is e-mailing back 10 and forth with Commander Axel and in one of 11 those e-mails, Vomastek's telling Axel, "We're 12 removing the priest tomorrow." 13 Q. You're pretty much in charge of, on behalf of 14 the archbishop, in dealing with a lot of this 15 and you've been around this stuff a long time. 16 As far as you're concerned, it's appropriate 17 for the archdiocese personnel to have 18 interviewed the victim and/or the victim's 19 mother before the police did, is that your 20 view? 21 A. It's -- it was not my -- it was not my 22 knowledge that the victim was going to be 23 interviewed. 24 that the victim was gonna be interviewed. 25 Q. I had no knowledge whatsoever What about the victim's mother, who -- 147 1 A. And, again, the -- my understanding was all we 2 were gonna get from her was the permission to 3 report it to the police. 4 Q. You also did know that McDonough and 5 Vomastek -- Vomastek is a deacon working for 6 the archdiocese, correct? 7 A. Correct. 8 Q. Okay -- were going to see Wehmeyer before the 9 10 police could, correct? A. I wouldn't agree that before the police could. 11 The police had had that information for over 12 12 hours. 13 Q. 14 15 You know that they had not interviewed Wehmeyer before McDonough went there, though? A. I didn't know that, but that was what -- 16 again, Vomastek was gonna call them on the way 17 out there. 18 Q. Well, you're just telling me that they had 19 already had it for 12 hours, now you're saying 20 that Vomastek called them on the way there. 21 A. But he had -- he had also communicated with 22 them the evening before. But what I'm saying 23 is, the -- the matter was reported to the 24 police approximately five p.m. -- p.m. on the 25 evening of the 20th. Now it's sometime mid- 148 1 morning on the 21st. 2 there, Vomastek again calls the police and 3 says, "We're going out there." 4 Q. 5 They were going out Are you telling the archbishop what's going on? 6 A. No. 7 Q. What are telling him? 8 A. Well, I simply, as I said earlier, informed 9 him, gave him a status update at some point in 10 11 Not all those details. time. Q. Did he give the go-ahead to allow McDonough to 12 go out there and interview and serve the 13 decree before the police could? 14 A. I don't know that he -- 15 MR. HAWS: 16 17 Objection, misstates testimony. A. I don't know that he knew what -- how -- what 18 the sequence would be. 19 signed the two decrees prior to that time 20 because one was a decree removing Wehmeyer and 21 the other one was a decree imposing certain 22 limitations. 23 BY MR. ANDERSON: 24 25 Q. He obviously had Well, one was a decree ordering an internal investigation? 149 1 A. Correct, yeah. Yeah. 2 Q. That means internal, archdiocese, right? 3 A. Well -- 4 Q. To be shared with the ardiocese only, right? 5 A. No. 6 Q. That's what internal is, inside, right? 7 A. He had appointed -- for canonical purposes, he 8 had appointed Father Laird to be the 9 investigator. That -- that's not just for the 10 inside. 11 steps are that are involved in something like 12 this. 13 one that prepared the decree pursuant to canon 14 law. 15 Q. 16 That's misstating what the canonical And, again, Jennifer Haselberger is the She's the canon law advisor, not me. Well, you don't share it with anybody from the outside, it's internal, isn't it, it's inside? 17 A. Is what internal? 18 Q. The investigation. 19 A. Well, we didn't know what was gonna be 20 investigated at that point because we didn't 21 know what the police were gonna do. 22 Q. So why was the gun taken? 23 A. I don't know. 24 25 It wasn't -- I wasn't involved in the question about the gun. Q. When they came back, they brought the gun back 150 1 and the computer and turned it over to you, 2 didn't they? 3 A. 4 Not the gun. The computer they did -- well, actually, they put 'em both in the vault. 5 Q. And you had something to do with what, though? 6 A. Something to do with what? 7 Q. The gun and the computer. 8 A. I never saw the gun. 9 do with the gun. I never had anything to They put -- they put that in 10 the -- in the vault along with the computer, 11 and a day or two later, Officer Gillette came 12 to get the computer, yeah, to get the 13 computer. 14 Q. Why did they take the computer? 15 A. I don't know. 16 Jennifer Haselberger apparently instructed him to get his computer. 17 Q. And why do you put that on her? 18 A. Because it wasn't my recommendation. 19 Q. Well, then why do you pick her out? Why do 20 you select her as the one who made that 21 decision? 22 A. 23 Well, she was part of the discussion and she said, "Get his computer." 24 Q. Did you hear her say that? 25 A. Yeah. 151 1 Q. To whom? 2 A. McDonough and Vomastek. 3 Q. When? 4 A. Well, it had to be on the 21st. 5 Q. Where was that? 6 A. Well, it was somewhere within the Chancery 7 offices. 8 somewhat fluid between my office, Father 9 Laird's office and Jennifer Haselberger's 10 11 I mean, our discussions were office. Q. Who was present when you made the assertion 12 that she ordered the computer be seized by 13 Kevin McDonough? 14 A. I don't know where we were. 15 Q. Who else was present when you claim she made 16 17 that order? A. I don't know who else was present. I know I 18 didn't make the instruction and I know that 19 they -- they took the computer and she said, 20 "Get the computer." 21 Q. When the computer was taken by McDonough and 22 brought back to the Chancery, it was turned 23 over to you in your chain of custody, so to 24 speak, right? 25 A. It was put in the vault. I was aware that the 152 1 gun and the computer were put in the vault. 2 Q. Did you look at the computer? 3 A. No. The only thing I looked at the computer 4 was when Officer Gillette came to pick it up, 5 I think I prepared a receipt that probably 6 identified it as an X brand computer, maybe 7 serial number, model number, something like 8 that. 9 computer up, I didn't turn it on. That's -- I -- I didn't open the I believe 10 it was a laptop computer. 11 look at anything on the computer. 12 physically looked at that -- a closed laptop 13 computer, turned it over to the police 14 officer. 15 Q. I certainly didn't I When you heard, as you claim, Jennifer 16 Haselberger order the computer be seized, as a 17 lawyer and as the chancellor, didn't you say, 18 "Hey, wait a minute. 19 not our job"? Wait a minute. 20 A. No, I didn't. 21 Q. Why not? 22 A. I didn't. 23 Q. Why didn't you see it that way? 24 A. It didn't even dawn on me. 25 "Get his computer." That's She was saying, 153 1 (Discussion out of the hearing of 2 the court reporter) 3 BY MR. ANDERSON: 4 Q. 5 6 When did you tell the police that you had the computer? A. I don't know how the police learned that we 7 had the computer. 8 day or two, they came to get the computer. 9 Q. All I know is that within a In fact, it was not volunteered by you that 10 you had used it and taken possession of the 11 computer to police, correct? 12 A. Well, I certainly didn't call the police, no. 13 Q. Why not? 14 A. No. Were you concealing it? Not at all. 15 (Discussion out of the hearing of 16 the court reporter) 17 BY MR. ANDERSON: 18 Q. 19 Did you at the time you gave them the computer, did you give them Wehmeyer's file? 20 A. No. 21 Q. Why not? 22 A. They didn't -- nobody asked for Wehmeyer's 23 24 25 file. Q. Well, you knew that there was information in Wehmeyer's file that could be helpful to a 154 1 police investigation? 2 A. I didn't necessarily know that, no. 3 Q. And you reviewed that file? 4 A. Well, I had some three years ago earlier, yes. 5 Q. Didn't you think that would be valuable to the 6 police in investigating a crime that had 7 already been reported against a minor by 8 Wehmeyer? 9 A. I was prepared to re -- to cooperate with the 10 police and provide them whatever information 11 they want, but they weren't -- they weren't 12 asking me for a file, they weren't asking me 13 for anything other than the computer. 14 Q. The fact is, you or no officials from the 15 archdiocese has ever turned over a file to the 16 police or volunteered to do so, correct? 17 A. Oh, well, I just think I told you earlier 18 today we turned a file over involving Father 19 Wenthe to the police. 20 Q. Yeah, that's because the police demanded it. 21 A. Well, they came and sought the -- I don't know 22 that "demanded" is the right word. 23 in and asked for us to provide them with 24 Wenthe's file. 25 Q. They came What did you know about Wehmeyer's camper and 155 1 2 how he had used it to access the kids? A. I knew nothing about that prior to his arrest. 3 I -- I knew he had a camper on the 20th 4 somehow, and I don't know how, I learned that 5 he was out of town. 6 communicated with the parish and learned that 7 Father Wehmeyer was outta town, he had his 8 camper with him and would not be returning 9 until the 21st. 10 11 I think that somebody had That's all I knew about a camper. Q. There's on June 21st an e-mail or that 12 Haselberger sends an e-mail to you and there's 13 a -- it says, "How did it go?" 14 that? Do you recall 15 A. What time is the e-mail? 16 Q. 8:33 p.m. 17 A. I -- then I -- I -- it would be pure 18 speculation. I'd have to maybe look at the 19 context or my response, but I'm guessing she 20 was asking about the removal of Wehmeyer. 21 Q. It says, "I assume the trailer was gone." 22 A. I don't know. 23 Q. Question mark, question mark. 24 25 know about that? A. Nothing. What do you 156 1 Q. When you're sending e-mails to her at that 2 time, is that from your office in the 3 Chancery? 4 A. At what time? 5 Q. 8:33, June 21st. 6 A. I thought this was an e-mail from her to me. 7 Q. Okay. 8 A. Oh, it could be either in the office or on my 9 10 When you're receiving it then. phone. Q. 11 So you're receiving them on your smart phone or at the office? 12 A. Correct. 13 Q. Do you have another computer at your house or 14 any other computer that you use at your office 15 besides the one in your office? 16 A. Not for purposes -- well, okay. Let me 17 explain that perhaps. I have a computer in my 18 office -- at the time, if you're talking about 19 June of 2012, I have a computer in my office, 20 I had an iPhone that would sync with that 21 computer, so any message that was sent to my 22 e-mail address would be on both, and any 23 message that I sent out from either one would 24 be on both. 25 that would allow me to go in remotely and I also had a computer at home 157 1 access my office and my e-mail account, but 2 those e-mails would again stay on that 3 archdiocesan account. 4 personal e-mail account in my home computer, 5 if that makes sense. 6 Q. Yup, it does. It wouldn't be on a On January 29th of 2014, it 7 appears that Joe Kueppers is forwarding an 8 e-mail chain concerning this stuff kind of 9 after the fact. 10 a timeline. Do you know -- setting forth Do you know anything about that? 11 A. Setting forth a timeline? 12 Q. Yeah, of various events that we've been 13 14 talking about. A. Hum. I know that there was some question at 15 some point in time about the police 16 investigation and what the timeline was in 17 terms of our reporting it to the police. 18 Q. 19 Had the police interviewed you concerning your knowledge of these events? 20 A. No. They've never asked. 21 Q. Have you ever volunteered to speak with them, 22 knowing that there's an ongoing investigation 23 that you may have knowledge of? 24 A. I haven't. 25 Q. Why not? 158 1 A. 2 3 I just -- I assume if they wanted to speak with me, they'd speak with me. Q. 4 Don't you want them to know what happened and whether or not crimes occurred here -- 5 A. Well -- 6 Q. -- be helpful with the investigation? 7 A. The priest -- the priest pled guilty, so it 8 made the question of his guilt or innocence 9 moot, so at that point in time I don't 10 11 understand. Q. Well, you're aware there's an investigation of 12 the archdiocesan officials and their role in 13 the Wehmeyer matter as well as others, are you 14 not? 15 A. Right. And I'm also aware of the fact that 16 apparently the police or the -- the county 17 attorney chose not to prosecute that. 18 Q. 19 20 attorney reopened that investigation? A. 21 22 25 Well, I've seen reports of that. I -- I don't know that for certain. Q. 23 24 Well, are you also aware that the county Well, you're basing it on reports they closed it, so you must -- A. Well, I saw -- I saw the county attorney on television saying he closed it, but I didn't 159 1 see him on the television saying he reopened 2 it. 3 Q. So how do you know he reopened it then? 4 A. Because -- only from what I've read in the 5 newspaper, I've learned that it's been 6 reopened. 7 Q. 8 So it's from the media you rely on in both instances, right, that they closed it -- 9 A. Yes. 10 Q. -- and reopened it? 11 A. One was the official county attorney saying we 12 closed it, the other one was a news report 13 saying the county attorney's office reopened 14 it. 15 Q. Mr. Eisenzimmer, why haven't you chosen to 16 bring the information in your knowledge, in 17 your possession to law enforcement? 18 you made that choice? 19 A. 20 21 Well, I don't know that I have made that choice. Q. Why have I just simply haven't done it. Don't you think you're possessed of 22 information that could be helpful to an 23 investigation? 24 A. Not that's -- not that's non-privileged. 25 Q. Are you concerned that you could be implicated 160 1 in a failure to report and an obstruction of 2 justice or an interference with law 3 enforcement? 4 A. 5 6 I'm not. I've told you here today what happened. Q. We reported it. The archbishop compiled a task force, given 7 public pressure and the like, recently and I 8 think Father Witt was kind of the point on 9 that and had a number of people interviewed. 10 Did you get interviewed for that task force? 11 A. I did. The report reflects that. 12 Q. Okay. 13 A. Brian Short. 14 Q. And on one occasion or more than one? 15 A. Single occasion. 16 Q. And how long have you known Brian? 17 A. Well, I think I met him years ago, but I don't And who interviewed you? 18 know him. 19 think he mediated a case I was involved in 20 once years and years ago. 21 Q. He might have -- I'm not -- yeah, I We've referred to the Wehmeyer file. I want 22 to ask you some questions about the file 23 protocols, as you understand them to be, and 24 how they are to be stored. 25 Is it correct to say that there is 161 1 an upstairs file, which is on the main level 2 of the Chancery, called a -- it's also known 3 as a vault with a lock on it? 4 A. 5 Okay. First of all, there is a vault with a lock on it. 6 Q. Okay. 7 A. Okay. 8 Q. And where is that? 9 A. Well, it's in the Chancery complexes, back by 10 some of the staff cubicles. 11 Q. And who has access to that combination? 12 A. The combination? 13 Q. Or the lock -- 14 A. The two -- 15 Q. -- to unlock it. 16 A. The two chancellors, the people in the records 17 and archives office and I suspect that if they 18 needed to get it, the archbishop and vicar 19 general would have the combination, too. 20 Q. 21 22 And that file -- what files are contained in that vault? A. Just about all of the active files of the 23 archdiocese. 24 narrative of those. 25 Q. No. So if you want me to give you a I just need to know, that would be the 162 1 2 personnel files of the priests, right? A. That would be one of the categories of files, 3 but not the only category of files in the 4 vault. 5 Q. 6 There's also a file cabinet in the vicar general's office, is there not? 7 A. At what point in time are you talking about? 8 Q. Well, at the point in time in which you're 9 10 chancellor, let's go with that one. A. Well, there was some files, not in the vicar 11 general's office, but in his -- his 12 administrative assistant's office. 13 Q. Judy Delaney? 14 A. Judy Delaney. It was actually a shared -- a 15 -- one cubicle that had two work stations in 16 it, and it was in that cubicle. 17 office, it's a cubicle. 18 during the period of time that Father 19 McDonough was the vicar general. 20 Q. 21 It's not an And that was true And that contained complaints of inappropriate conduct -- 22 A. It contained -- 23 Q. -- against priests? 24 A. Excuse me, I'm sorry, I interrupted you. 25 Q. That contained complaints of inappropriate 163 1 2 conduct against priests? A. 3 Not -- well, in -- some of 'em would have, sure. 4 Q. And who had access to that? 5 A. Well, the same people that would have access 6 to the vault files had access to those files 7 as well. 8 Q. Chancellors, archbishop, yourself; who else? 9 A. Archive and record staff, director of clergy 10 services, vicar general, archbishop, if 11 anybody from the comprehensive assignment 12 board would need it, they would have access to 13 that. 14 Q. Is there also an archive in the basement that 15 contains a file pertaining to dead priests and 16 priests no longer active in the archdiocese? 17 A. Correct. As I said, the vault contains active 18 files. 19 death or if they're not a priest of this 20 diocese and they've moved or if they're an 21 order priest that's moved, the files then are 22 marked "inactive" and moved to the storage in 23 the basement. 24 25 Q. Once the priest is inactive through And then there's also a secret archive in the basement, which is a small room with a safe in 164 1 it? 2 A. It's a large room with a small safe. 3 Q. Okay. 4 A. Nothing. 5 Q. Are there other files that pertain to or have And what's contained in that? 6 information pertaining to potential sexual 7 misconduct by priests, specifically sexual 8 abuse of minors that we haven't identified by 9 location or description? 10 A. Well, let me see if I can clarify and help you 11 out there. Each priest -- there's a file on 12 each priest. 13 on what's going on. 14 vault or for some period of time some priests 15 that had any kind of disciplinary issue, and 16 it could be sexual abuse of minors, it could 17 be sexual involvement with consenting adults, 18 it could be chemical dependency, whatever the 19 issue was, some of those were kept in that 20 area I described that was in Judy Delaney's 21 work station. 22 became inactive through death or something, 23 then they would be moved downstairs because it 24 would then be more of archival status as 25 opposed to an active file. Now, where that file is depends So they're either in the But any of those files, if they Does that help? 165 1 Q. I think so. Is there any other -- other 2 locations where files pertaining to priests 3 would be located who are either accused or 4 engaged in sexual misconduct? 5 A. Well, just temporarily if -- if -- if, for 6 example, this afternoon as I was working as 7 chancellor, I received some report and I was 8 preparing a memorandum, that might be kept in 9 my office for a period of time till I could 10 move it into the priest file. 11 eventually, everything should end up in the 12 priest file was the process. 13 Q. 14 But, Does Archbishop Nienstedt keep any of his own files? 15 A. Not to my knowledge. 16 Q. Did Archbishop Flynn? 17 A. Not to my knowledge -- well, Archbishop Flynn 18 did keep files on his own personal affairs. 19 Q. But I'm talking about in a sexual abuse -- 20 A. Oh, not at all. Not at all. 21 MR. KINSELLA: 22 video record to change the media. 23 (Recess taken) 24 MR. KINSELLA: 25 record at 2:59 p.m. Excuse me, off the Back on the video 166 1 A. Let me also clarify, Mr. Anderson, that within 2 the Chancery there would also be some other 3 miscellaneous files that pertain to priests, 4 for example, there would be a file relating to 5 their pension; there might be a file that was 6 in the office of the director of clergy 7 services for some reason for some period. 8 anything relating to disciplinary matters 9 should end up in the priest file. 10 11 BY MR. ANDERSON: Q. You made a reference to the comprehensive 12 assignment board and what is that and what 13 files do they keep or where are they? 14 But A. Again, I don't know necessarily what files 15 they would keep, but if -- if -- if something 16 would exist that they would produce, it would 17 end up in the priest file, I presume. 18 comprehensive assignment board was a group of 19 people, mostly priests, I believe, who would 20 be available to the archbishop to advise him 21 on assignments of priests. 22 archbishop would utilize this group to help 23 him make a decision relative to assignment of 24 a priest. 25 don't know, you know, what kind of things they The So sometimes the I was never in their meetings, so I 167 1 2 produced. Q. What about the priest personnel board, how was 3 that different from the comprehensive 4 assignment board? 5 A. Really, just a difference in terminology. I 6 think earlier they referred to the clergy 7 assignment board, later on it was 8 comprehensive assignment board, same -- same 9 group. 10 Q. Okay. That's what it sounded like. Okay. 11 Have you ever seen minutes or 12 records from the priest personnel board 13 formerly, now the comprehensive assignment 14 board? 15 A. I have not, no. I had no involvement with 16 that process whatsoever. 17 earlier, my counsel or -- or advice relative 18 to assignment of priests was never sought in 19 any way, shape or form in my work as 20 chancellor. 21 Q. As I indicated Well, you'll recall just from the Adamson 22 cases alone, the bishops used to use the 23 priest personnel board -- 24 A. Right. 25 Q. -- for, you know, making assignments and 168 1 getting guidance and they kept minutes and 2 records like that. 3 A. 4 Do you know if that -- And they may well have minutes, I -- I've never seen any that I can recall. 5 Q. Okay. 6 A. Typically what would happen is, when the 7 archbishop was ready to make an assignment, 8 Jennifer Haselberger, during the time she was 9 there, or before her Sister Dominica Brennan, 10 would prepare, in essence, a decree, simply 11 saying that, you know, this priest is being 12 assigned there, but that wasn't a -- those 13 weren't minutes. 14 that I saw -- ever saw that came as a result 15 of that process, but the fact that there was a 16 decree doesn't necessarily mean that they went 17 through the CAB, as we called it, C-A-B. 18 Q. That's the only documents Did you ever become aware of discussions 19 between Archbishop Nienstedt and Father 20 McDonough about not making certain -- or 21 creating certain records so that they could 22 avoid being discovered? 23 A. The only time I've ever seen that was in the 24 archbishop's deposition testimony. 25 idea where that's coming from. I have no There's never 169 1 been a discussion of that nature. 2 should be rather obvious from the files that 3 people put everything in writing and never 4 destroyed it. 5 Q. And it Well, you and I would disagree on that because 6 that's not obvious, but, you know, that's not 7 a question. 8 A. 9 Yeah, I -- I never heard any discussion like that whatsoever. Both of them had been 10 involved in litigation, Kevin McDonough here 11 and I think he described it in his deposition; 12 Archbishop Nienstedt was involved in 13 litigation, both here as well as in New Ulm, 14 they knew that documents were discoverable, so 15 I -- I -- I'm astonished that the archbishop 16 described the conversation like that with 17 Father McDonough. 18 Q. Well, knowing that they'd be discoverable and 19 knowing that there's certain things you don't 20 want discovered, you wouldn't put it in 21 writing if that was your intent, right? 22 A. Well, I -- I suppose. I'm not aware of 23 anybody who ever was hesitant to put something 24 in writing. 25 Q. Father McDonough referred to disciplinary 170 1 files in his deposition. 2 he's referring to, disciplinary files? 3 A. I -- I -- I don't. Do you know what Again, sometimes when you 4 were dealing with something you might, you 5 know, have a, you know, a working file. 6 mean, some of the priest files were rather 7 voluminous. 8 something, you might start, you know, keeping 9 this document, keep 'em writing that memo or 10 whatever and keep 'em in there till they got 11 into the priest file. 12 file known as a disciplinary file that were 13 kept separate from the priest file. 14 what he's simply referring to is a priest file 15 that was kept in a separate cabinet because it 16 was a priest involved in some disciplinary 17 issue. 18 files of Judy Delaney that were in Judy 19 Delaney's office. I So if he were working on But there was not a I think So I think he's referring there to the 20 Q. There's also reference to "restricted files." 21 A. Same files, those are the files that -- 22 restricted was a common term. Those files 23 were the ones that were kept in Judy Delaney's 24 work space. 25 you looked for a file on Father X, if his file So if you went into the vault and 171 1 was one of the restricted disciplinary files, 2 there would be a notation in the vault saying 3 that that file is in the vicar general's 4 office. 5 went into the vault and it wasn't there, there 6 would be a notation telling you it's in the 7 other -- it's in the other set of files. 8 then you just -- you would go back to a 9 different area and get it. So if you needed that file and you So 10 Q. Any files kept by victims assistance ministry? 11 A. I -- I don't know what files she kept. 12 13 You'd have to ask Greta Sawyer. Q. Okay. When a victim or victim's family member 14 calls in to make a report of sexual abuse to 15 the archdiocese, is it correct to say that 16 over time and during your tenure as 17 chancellor, there were certain designated 18 people to take those reports or complaints -- 19 A. Usually -- 20 Q. -- is that correct? 21 A. Yes. 22 23 Sawyer's office. Q. 24 25 I mean, they could call the -- Greta Well, if they just called the archdiocese, they're usually directed -- A. Yeah. 172 1 Q. -- there's, you know, a practice? 2 A. Yeah, and normally that would -- those calls 3 would come either to me or to Father -- or to 4 the vicar general. 5 Q. Yeah, that's what I was getting at. 6 A. But some people would -- would deliberately 7 call the advocacy office because our website 8 has, you know, "Here's the advocacy phone 9 number." So they might call Greta directly 10 without going through the vicar general or the 11 chancellor's office. 12 Q. 13 So you don't know if Greta keeps separate files or that office keeps separate files? 14 A. I don't know what she kept. 15 Q. Okay. 16 A. And at some point in time there was also files 17 if -- if they were paying bills for a victim, 18 like counseling bills, accounting would have 19 to keep some record of that in some fashion. 20 I -- what -- how they were doing that, I don't 21 know. 22 (Discussion out of the hearing of 23 the court reporter) 24 BY MR. ANDERSON: 25 Q. There is some indication that there are files 173 1 kept pertaining to individual victims 2 somewhere by the archdiocese. 3 anything about that? 4 A. Do you know Those -- if they're -- they existed, I think 5 Greta Sawyer would have then, I don't know. 6 -- I didn't maintain files on victims. 7 Q. 8 Is, to your knowledge, anybody in the archdiocese? 9 A. No. 10 Q. There is -- 11 A. Again, with the exception of these financial 12 13 I Not to my knowledge. things that would need to get paid. Q. There's some indication somewhere that there 14 are some lists that have been prepared of 15 victims of abuse. 16 compilation -- Are you aware of such a 17 A. No. 18 Q. -- or its existence? 19 A. No. 20 Q. The list of the accused offenders or those 21 that ultimately were deemed credibly accused, 22 when, to your knowledge, was such a list first 23 compiled by the archdiocese? 24 25 A. I don't know. I -- I'm not sure a list ever has been prepared, quite frankly. 174 1 Q. Well, you're aware that reports were made 2 under the Charter for the Protection of 3 Children in 2002 that lists were going to be 4 compiled and that reports were made to John 5 Jay College of credibly accused offenders, 6 correct? 7 A. I know that information was going to be -- I 8 -- I've learned that information was submitted 9 to the John Jay study, but as far as I know, 10 it wasn't a list of names. 11 credibly accused priests or -- and I don't 12 think credibly accused was the word that was 13 actually used by John Jay. 14 Q. 15 16 It was numbers of Well, in order to compile the numbers, you have to compile the names, correct? A. 17 I don't know how they did it. I wasn't there at the time. 18 Q. So you had no role in that -- 19 A. No -- well -- 20 Q. -- or knowledge of it, is that what you're 21 22 saying? A. -- I -- I take that I back, I take that back. 23 I know that when they were compiling that, I 24 received a call from Bill Fallon, I was still 25 in my law firm at the time, and Bill asked me 175 1 for some information about matters that I had 2 handled as their outside legal counsel and 3 that's all I can really tell you about it. 4 Q. Has there been a practice where certain files 5 get moved over to your former law office, now, 6 you know, Tom's office, that, in anticipation 7 of litigation, they're housed there as opposed 8 to in the archdiocese? 9 A. Only for the limited purpose, for example, of 10 copying them so they could be produced in 11 litigation. 12 files, make the necessary copies, Bates stamp 13 them or whatever else, and then send those 14 files back to us. 15 again, it would depend on the lawsuit, so to 16 give you a prime example of that, you sued 17 out, I think, about 12 to 14 claims on behalf 18 of victims of Thomas Stitz. 19 directed our archives and records people to 20 get all of the Stitz material together and 21 send that over to Tom's office for, again, 22 photocopying, Bates stamping and then send 23 those back to us at some point in time. 24 25 Q. He would -- his office would get So there was times, and, So we would have In 1998, the Pioneer Press reported and quoted Father McDonough as saying there are 15 176 1 priests have been credibly accused of 2 molesting minors in the archdiocese within the 3 last 50 years. 4 that public statement? Do you know on what he based 5 A. This is in 1998? 6 Q. Yes. 7 A. I don't have a clue. 8 Q. He also stated publicly and to the reporter as 9 reported that this number is slightly higher 10 than the national average. 11 what he based such a statement or anything 12 about that? 13 A. 14 Do you know on I -- I do not. MR. HAWS: And, counsel, you went 15 over that with Father McDonough and you are 16 taking much of that out of context. 17 report says what it says and this witness 18 obviously didn't have anything to do with it, 19 so I'm not sure its purpose here. 20 A. The And if I might follow up to your earlier 21 question, counsel. 22 BY MR. ANDERSON: 23 Q. Well, follow up to which question? 24 A. Well, about lists and whether lists existed. 25 I'm also aware that -- and I think it was 177 1 largely in connection with the John Doe 76C 2 case. 3 Q. Yes. 4 A. That in responding to discovery, it was 5 discovery sought relative to the priests that 6 were identified related to the John Jay, so I 7 know I was involved with outside legal counsel 8 to produce that information as part of that 9 litigation. 10 Q. And in the John Doe 76C, which became publicly 11 the case of Jim Keenan versus the Archdiocese 12 of St. Paul and Minneapolis and the Diocese of 13 Winona involving Adamson, you did become 14 involved in the compilation of the list for 15 purposes of that litigation, is that what 16 you're saying? 17 A. Well, I mean, I -- I mean, we were preparing 18 that in anticipation of litigation. 19 mostly a bystander to that because the John 20 Jay list had been pre -- prepared before I was 21 at the Chancery, so that was really Father 22 McDonough that was working mostly with Tom 23 Wieser on that. 24 25 Q. I was Have you ever seen a list of priests accused, just priests accused? 178 1 A. Just as part of the discovery and whatever has 2 been produced here recently pursuant to Judge 3 Van de North's orders. 4 Q. But before recently, had you ever seen a list? 5 A. No. 6 Q. As chancellor? 7 A. I mean, I -- I had some sense of disciplinary 8 files that were back in the vicar general's 9 office, but those, again, were a -- a wide 10 array of problems, could be financial, could 11 be chemical dependency, whatever, so that 12 didn't necessarily identify them as sexual 13 abusers. 14 recognize, so if Gil Gustafson's file was 15 there, for example, and I can't remember 16 whether it was or not, I would recognize, 17 well, yes, Gil was at one point in time 18 accused -- or multiple times accused of abuse. 19 But other files were there and I wouldn't 20 recognize who they were or what they were 21 there for. 22 Q. And some names, of course, I would Well, you quite obviously know that various 23 archbishops take over the archdiocese and have 24 worked with and for Archbishop Roach and Flynn 25 and now Nienstedt. So, in your experience, 179 1 hasn't anybody ever sat down to prepare a list 2 for anyone of the incoming archbishops newly 3 appointed to this geographical area of those 4 priests who have been accused, so that that 5 incoming archbishop, be it Nienstedt, Flynn, 6 can know who it is they have to be aware of? 7 A. The only -- the only experience I had was when 8 Archbishop Nienstedt came in and I'm not aware 9 whether anybody prepared a list for him. 10 11 I never saw a list. Q. And nobody asked you, as far as you know, 12 asked you to do that or, as far as you know, 13 Archbishop Nienstedt never asked that it be 14 done? 15 A. Nobody ever asked me to prepare any kind of 16 list. 17 Nienstedt asking anybody for such a list. 18 Q. And I'm not aware of Archbishop Did Archbishop Nienstedt ever ask you, given 19 your history, both as the chancellor and your 20 history with this archdiocese, to brief him 21 fully on who the priests were that had been 22 accused of offenses and who may pose a risk of 23 harm? 24 A. No. He never asked me for that information. 25 Q. Do you know if he asked anybody? 180 1 A. 2 3 Well, I -- I -- I'm aware that in his deposition testimony he -- Q. Well, now I don't want you to go to his 4 deposition. I'm talking about your personal 5 experience now. 6 A. No. 7 Q. So let's get the question -- 8 A. Okay. 9 Q. -- so we get on the same page. 10 A. Okay. 11 12 Q. Okay. Well, I was going to go there but I wanted to find out first. A. 15 16 He said I was in such a meeting with him and I was not. 13 14 I just want to clarify that. No. I'm not aware of he ever asking anybody to brief him. Q. 17 Let me ask the question and then I'll let you answer it. 18 A. Okay. 19 Q. My question is this, to your knowledge, has 20 any official of the archdiocese, including 21 yourself, at Archbishop Nienstedt's request or 22 for any reason, ever sat down with him and 23 identified for him who the potential risks 24 are, including those accused of sexual abuse 25 of minors, including those credibly accused of 181 1 sexual abuse of minors or anything like that, 2 to your knowledge? 3 MR. HAWS: Object to the form, it's 4 multiple, involves all kinds of people, other 5 than Mr. Eisenzimmer. 6 to his knowledge. 7 A. I think he can testify Let me see if I can respond to it in a 8 responsive manner. I'm not aware of anyone 9 doing that with him and I'm not aware of him 10 ever requesting that somebody do that with 11 him. 12 BY MR. ANDERSON: 13 Q. And then the next question is, because I think 14 you answered it, but I want to get it in 15 question and answer form, next question is, 16 did Archbishop Nienstedt ever sit down with 17 you shortly after his installation here and 18 ask you to identify for him the potential 19 risks in the archdiocese of priests sexually 20 abusing kids and who had a history or anything 21 like that? 22 23 A. No. (Discussion out of the hearing of 24 the court reporter) 25 BY MR. ANDERSON: 182 1 Q. What is Archbishop Nienstedt's management 2 style? 3 number of folks as very hands-on, micro 4 manager-type. 5 how do you describe his management style of 6 the archdiocese? 7 A. Is he a -- he's been described by a How would you have described -- I wouldn't describe him as a micro manager nor 8 would I necessarily describe him as hands-on. 9 In his view, he is the archdiocese. You 10 worked with him largely by written memorandum. 11 If he wanted some information, he would write 12 you a memorandum, you would be expected to 13 respond in memorandum. 14 At least with my work, he largely 15 let me do my work in an unfettered fashion, 16 but he certainly had high expectations for the 17 work I would do for him and that I would keep 18 him briefed. 19 Archbishop Nienstedt was a guy that you didn't 20 want to hear him say, "Nobody ever told me 21 that," or, "You never told me that." 22 would always try to keep him abreast of 23 matters of particular importance that he was 24 seeking from me. 25 Q. And it was also clear that Is sexual abuse by the clerics in the So I 183 1 archdiocese one of those matters that he 2 communicated to be of particular importance? 3 A. He never identified particular subject matter 4 in that regard. 5 working observation of the man. 6 Q. That was really just my After litigation involving Adamson, it 7 appeared to me that Archbishop Roach 8 implemented a lot of changes in policy, 9 protocol and practice and made some attempts 10 to do a better job. 11 fair characterization? 12 A. Well, I -- no. Would you -- is that a I don't think it's a fair 13 characterization. The way I think I would 14 describe that is, is during the period of time 15 that you're talking about, I think that the 16 church was undergoing a fair amount of 17 litigation and they were trying to use both 18 the litigation as well as other matters 19 involving sexual abuse to learn from to 20 develop better policies, better responses and 21 better best practices. 22 of that stuff began when Archbishop Roach was 23 -- was archbishop, especially under the 24 direction of Father O'Connell and somewhat 25 Kevin McDonough. And so I think a lot 184 1 Q. Did Archbishop Flynn make any improvements in 2 practice or protocol when it pertains to 3 sexual abuse and safety that Archbishop Roach 4 hadn't already? 5 A. Well, yes. I think Archbishop Flynn had been 6 in Lafayette, Louisiana, which had its own 7 experiences with sexual abuse litigation. 8 also had been the chairman of the bishops' ad 9 hoc committee, which became the committee on 10 He child abuse protection -- 11 Q. I know he had titles, but what did he do -- 12 A. Well, I think that -- 13 Q. -- to improve it? 14 A. -- ultimately, during his tenure, the Charter 15 for Protection of Children and Young People 16 was passed so that resulted in doing some work 17 in terms of changing our policies and how we 18 handled abuse. 19 adopted the so-called zero tolerance policy, 20 and so those kinds of things were implemented 21 with Archbishop Flynn. 22 saw the introduction of the Office of Child 23 and Youth Protection efforts, which was 24 educational and training and -- and the like. 25 Q. And, of course, the charter Then his tenure also Archbishop Nienstedt was obviously quite 185 1 public about an accusation that had been made 2 against him that got reported and investigated 3 and that was reported in the newspapers, and 4 you're aware of that? 5 A. From what I read in the newspaper, yeah. 6 Q. Had you, before you read -- before that got 7 reported in the newspapers, had you any 8 information -- received any information from 9 any source that that complaint or that report 10 had been made years -- and known years before? 11 A. The complaint against Archbishop Nienstedt? 12 Q. Yes. 13 A. No. 14 Q. Were you, yourself, involved in any of the Not at all. 15 discussions about whether or not to release 16 the names of the priests accused of sexual 17 abuse of minors? 18 of a lot of -- Because that was the subject 19 MR. HAWS: 20 MR. ANDERSON: 21 A. At what point in time? Any time. Yes, but those would be covered by 22 attorney/client privilege. 23 BY MR. ANDERSON: 24 Q. Anything in your capacity as chancellor? 25 A. Well, in order -- in order to really 186 1 articulate the privilege, during the John Doe 2 76C there was some discussion, including some 3 discussion in mediation, about that question 4 and I would have advised the archbishop at 5 that time on the legal status of some of those 6 issues, so let's leave it at that. 7 Q. 8 9 So if I ask you questions about that, is it your claim that it's privileged? A. 10 Yes, because it's not only within the context of litigation, but it was legal advice. 11 (Discussion out of the hearing of 12 the court reporter) 13 BY MR. ANDERSON: 14 Q. Why didn't the Archdiocese of St. Paul and 15 Minneapolis release the list of credibly 16 accused priests until we forced it through 17 public pressure or litigation? 18 A. I think that's a question you'll have to 19 direct to the archbishop. 20 decision what he wants to do with that 21 information. 22 (Discussion out of the hearing of 23 the court reporter) 24 BY MR. ANDERSON: 25 It's -- it's his Q. How many conversations did you have with the 187 1 archbishop about whether that -- such a list 2 should be released? 3 A. 4 I don't know that I can tell you that. don't know. I More than one. 5 Q. And what time frame are we talking about? 6 A. Well, I think the first conversation would 7 have begun whenever we were litigating the 8 John Doe 76C case and thereafter up until the 9 time I retired as chancellor. 10 Q. And that list when it was first released in 11 the Keenan case was released to us, but under 12 a protective order by the archdiocese that was 13 sealed until more recently. 14 officials of the archdiocese, to your 15 knowledge, advised Archbishop Nienstedt 16 against the position that he took in 17 connection with that list? 18 MR. HAWS: Have any of the Just for the record, that 19 list was sealed pursuant to order of the 20 court, but go ahead. 21 MR. ANDERSON: 22 protective order from the archdiocese. 23 MR. HAWS: 24 MR. ANDERSON: 25 Yeah, there was a A. Signed by the court. Yeah. Agreed. I'm assuming you're not asking me what my 188 1 advice to the archdiocese was. 2 of anybody else within the archdiocese asking 3 him to do something different than what he 4 did. 5 BY MR. ANDERSON: 6 Q. Is that responsive? I think so. 7 (Discussion out of the hearing of 8 the court reporter) 9 BY MR. ANDERSON: 10 I'm not aware Q. To your knowledge was there anybody in the 11 archdiocese, including McDonough or other 12 officials, that were urging it not to be 13 released? 14 A. I'm -- I'm not recalling anybody who expressed 15 an opinion one way or the other. Any 16 discussions that were had reflected the fact 17 that many of the names on that list were 18 already out there in some fashion because of 19 prior publicity on bishop accountability, et 20 cetera. 21 through those means, but there had been some 22 limited disclosure in various communities, 23 especially parish communities, that so-and-so 24 had abused and he was here this period of 25 time. Other names weren't necessarily known So I think a lotta people were trying 189 1 to suggest that much of this information was 2 already out there in some way, shape or form. 3 Q. Well, are you aware of any effort by the 4 archdiocese to put that information out there 5 unless it was under pressure from us or as a 6 result of litigation? 7 A. Well, yes, as I say, if -- if -- if there was 8 an instance where there was some abuse, Father 9 McDonough or someone else might go out to a 10 parish and talk to the parish community, or 11 they might have the pastor speak to certain 12 people within the parish community to let them 13 know what the 14 talk to a parish trustees and do some form of 15 disclosure pursuant to, you know, a clergy 16 review board recommendation or somehow. 17 there was some of those kinds of efforts that 18 were undertaken at various times by people. 19 Q. 20 21 situation was or they might So You're on the board of the religious council, correct? A. Well, I have attended the religious -- 22 Minnesota Religious Council meetings. I don't 23 know that there's a -- I don't even know if 24 there's a board on -- I don't think I'm on the 25 board. 190 1 Q. And the religious council lobbied heavily 2 against statute of limitations reform, did it 3 not? 4 A. There was lobbying efforts made with respect 5 to statutory changes to the -- to the statute 6 of limitations involving sexual abuse. 7 wouldn't say against it. 8 a voice in how that statute was crafted over 9 the years. 10 Q. 11 12 I They sought to have And the archdiocese largely funded that effort, did it not? A. I don't know how it was funded. It's my 13 understanding all of the denominations that 14 were involved helped fund it. 15 Q. The archbishop has been funding extra payments 16 to various offenders, including Kapoun and 17 others. What do you know about that? 18 A. Well -- 19 Q. The practice of -- 20 A. -- I know some and I know some things about 21 22 that. Q. 23 24 25 Why are offenders getting more money than others? A. I don't know that they're getting more money. They -- canon law requires certain support 191 1 obligations financially to priests, even those 2 who have committed egregious acts, and so as 3 far as I know, at various times they've gotten 4 assistance to help them in some way, shape or 5 form. 6 Q. How many offenders are getting assistance? 7 A. I have no idea what that -- 8 Q. How many offenders have been getting that kind 9 of assistance, would you estimate, while you 10 you've been chancellor -- while you were 11 chancellor? 12 A. 13 14 I don't know. I -- I was not involved in that, although I became aware of some of them. Q. When did you become aware of the fact that 15 they were getting such assistance and getting 16 regular payments? 17 A. Well, I -- that would vary depending on who 18 the individual was. 19 about things being paid to them, others I 20 didn't learn it until matters involving an 21 accountant who was embezzling came up. 22 Jennifer Haselberger -- 23 Q. That's Scott Domeier? 24 A. Yeah. 25 Some of them I learned And Jennifer Haselberger also raised some questions about that about the same time 192 1 based upon, I think, largely the information 2 that was coming out. 3 Q. Scott Domeier raised some objections and some 4 concerns about these payments being made to 5 offenders, did he not? 6 A. Not to my knowledge. 7 Q. To your knowledge, did he raise them to the 8 archbishop -- 9 A. No. 10 Q. -- or any other official? 11 A. Not that I'm aware of. 12 13 That never -- nobody ever told me that. Q. He was the one that was required to -- the 14 archbishop is the one that approves those 15 payments, but he was the one that would 16 ultimately do the financial accounting for it, 17 correct? 18 A. First of all, I don't know that the archbishop 19 approved those. 20 of that. 21 Q. 22 23 I -- I don't have knowledge Well, who would have authority to approve such payments if it wasn't the archbishop? A. I don't know. Perhaps the vicar general, but 24 that would be up to the archbishop and the 25 vicar general what authority he would have in 193 1 that regard. 2 not positive that Mr. Domeier was the only 3 person that was authorized to cut those checks 4 or make those payments. 5 certainly if there was a regular payment, they 6 would put that in the accounting system and 7 that would be done proforma automatically 8 every month or whatever periodic payment was 9 made. 10 Q. But, also, and I'm not -- I'm My guess is, is The account is 1-515 under which payments to 11 those who have been accused or determined to 12 have abused children, but they're out of 13 ministry, but receiving payments. 14 know about that account and who authorized 15 those payments? 16 A. Well, that's a mischaracterization. What do you I think 17 the account was for, you know, whatever 18 payments were authorized. 19 it was specifically limited to that purpose. 20 It was priests' support. 21 variety of ways. 22 anything about it other than it -- that -- 23 every time you expensed something at the 24 archdiocese, it had to have an account number, 25 you couldn't get a check issued without an I don't know that That could come in a But I don't really know 194 1 account number, so it could be, you know, kept 2 track of by the accountants. 3 was the account, that's what they've charged 4 against. 5 Q. So 1-505 (sic) What do you know about priests being put on 6 disability and qualifying for monthly payments 7 under the diagnosis of pedophilia and that 8 practice in the archdiocese? 9 A. 10 11 I'm -- when you say "disability," what are you referring to? Q. Disability for pedophilia and receiving 12 disability payments by an internal insurance 13 company in the archdiocese. 14 A. I -- there's no such person that's ever 15 received money from a disability insurance 16 program within the archdiocese. 17 Q. Gil Gustafson? 18 A. No, he didn't. 19 Q. Where did he get the money that he gets paid? 20 A. Under his pension plan. 21 Q. Where did he get the money before he qualified 22 for pension? 23 A. I don't know. 24 Q. Are you aware that there's a disability policy 25 that's been written for him and the diagnosis 195 1 2 of that disability is pedophilia? A. That's incorrect. 3 (Discussion out of the hearing of 4 the court reporter) 5 BY MR. ANDERSON: 6 Q. Why was Gustafson put on the disability? 7 A. He qualified for disability under the pension 8 plan because of the determination by 9 Archbishop Flynn that he was disabled. 10 Q. And the disability is pedophilia? 11 A. I -- archbishop has the discretion to decide 12 if a priest is disabled. 13 thought process he went through to make that 14 determination, but he decided Gil Gustafson 15 was disabled under the pension plan. 16 Q. 17 18 I don't know what And the disability diagnosis was pedophilia, was it not? A. No. I don't know that. I -- I don't know. 19 Again, the sole discretion to make that 20 decision rested with Archbishop Flynn and he 21 made that decision. 22 is up -- you'll have to ask him. 23 Q. 24 25 What role did you have in the quinquennial report? A. On what basis he made it None. 196 1 Q. What -- 2 A. And I might add, thank God. 3 Q. Who is responsible for the compilation of that 4 data and the reporting as particularly 5 relating to sexual abuse? 6 A. The only person I know that had overall 7 responsibility for that report was Jennifer 8 Haselberger. 9 Q. And there's quinquennial reports required 10 before Haselberger's tenure as chancellor of 11 canon affairs. 12 responsible prior to that? 13 A. I don't know. Who would have been I wasn't there long enough to 14 have been there for the previous one. 15 was a delay there, too, because of change in 16 the -- because they changed popes, they went 17 from John Paul II to Benedict. 18 the time period got extended beyond the normal 19 five years, so there was only one report 20 prepared all the time I was chancellor, and 21 Jennifer Haselberger had the overall 22 responsibility for compiling that. 23 Q. There I think that In 2001, the Vatican required under the SST a 24 reporting being made directly to them, 25 correct? 197 1 A. I believe that's correct. 2 Q. What role did you have in that at all? 3 A. None. 4 Q. And what knowledge do you have of what priests 5 were reported, then, to the Vatican as having 6 abused minors? 7 A. I think there was some communication involving 8 Freddy Montero and -- but I wouldn't have done 9 that, Jennifer Haselberger did that. During 10 her tenure, she would have done any of those. 11 And I think that eventually there was 12 something done with Father Wehmeyer. 13 believe there was something communicated to 14 the CDF involving Wehmeyer after he pled 15 guilty. 16 Q. Yes, I When you talk about Freddy Montero, that's 17 Francisco Montero that came here from Ecuador 18 as an extern priest, correct? 19 A. Correct. 20 Q. And he lived with McDonough, correct? 21 A. I'm told that. 22 23 I didn't know that of my own knowledge. Q. Do you know what check was done on him before 24 he was allowed to work as a priest in this 25 archdiocese? 198 1 A. I don't. He was there when I came as 2 chancellor, I believe. 3 after I came as chancellor, I -- that wasn't 4 my responsibility or function. 5 normally the chancellor for canonical affairs 6 that would do those kind of things on extern 7 or religious priests. 8 Q. 9 10 And if he came there That was You were aware that Montero was arrested, correct? A. Well, I know he was taken into custody. 11 Whether he was actually arrested, I'm not 12 sure. 13 Q. 14 Well, I think custody and arrest -- let's use them synonymously. 15 A. Yeah, okay. 16 Q. Did you discuss that fact with Montero before 17 Yes, I became aware of that. he was taken into custody or arrested? 18 A. No. 19 Q. You met with him after that, did you not? 20 A. We met with him and his attorney at some point 21 22 in time. Q. 23 24 25 I never talked to him before then. Yes. Did you ask him if he had committed sexual abuse against that child or any others? A. We were -- the purpose of that meeting was not to interrogate him or ask questions or 199 1 investigate. It was simply to get us all 2 understanding what was happening with him 3 and -- 4 Q. Are you aware that he -- 5 A. And I might also add, most of that meeting was 6 conducted in Spanish, which I don't 7 understand. 8 (Discussion out of the hearing of 9 the court reporter) 10 BY MR. ANDERSON: 11 Q. Who paid for Montero's lawyer? 12 A. I don't know. 13 Q. Doesn't the archdiocese have a practice of 14 making arrangements to pay Paul Engh or 15 whoever was representing the accused 16 offender -- 17 A. There have been times where -- 18 Q. -- and then paybacks? 19 A. There have been times where we have, in 20 essence, lent priests money so they would have 21 legal counsel, yeah. 22 done with Montero or not. 23 Q. 24 25 I don't know if that was Those debts traditionally get forgiven after the case is over, don't they? A. Not that I'm aware of. 200 1 Q. Are you aware of any that have paid them back? 2 A. I know that there are a number of them still 3 paying it back. 4 Q. Can you give names? 5 A. I'd prefer not to. 6 Q. Well, we're not here if anybody -- nobody 7 8 prefers to be here today. A. 9 Yeah. I'd have to even think about it. trying to remember who Paul Engh's represented 10 over the year. 11 recalling any of the names, but -- 12 I'm Q. Yeah, as I sit here, I'm not Bishop Pates was in on that meeting with Paul 13 Engh and yourself. 14 and then what was the purpose of that meeting? 15 A. 16 17 I don't recall Bishop Pates being at that meeting. Q. Why was Bishop Pates there I don't think he was. In a memorandum concerning Montero there is an 18 expression that the police stated they 19 appreciated the archdiocese didn't contact 20 Montero before the police could. 21 A. Hum. 22 Q. Do you remember that exchange between the 23 police and Kevin McDonough? 24 A. I don't. 25 Q. Were you aware generally the police do not 201 1 want to have accused offenders contacted by 2 their employers before the police can 3 investigate -- can interview them? 4 A. Sure. And that's why we normally try to 5 coordinate whatever we're doing. 6 think our policies reflect that same 7 consideration, our written policies. 8 Q. 9 11 Well, that was adhered to in the case of Montero. 10 In fact, I Why wasn't it adhered to in the case of Wehmeyer? A. I think it was. I think we -- as I've 12 testified here repeatedly today, Deacon 13 Vomastek communicated with the police, telling 14 them exactly what we were doing to give them 15 the opportunity to say, "Don't do that," if 16 that was their desire. 17 Q. 18 19 You make that assertion, but you weren't in that meeting? A. Right. I'm only relying on what Deacon 20 Vomastek told me, so if you want to review it 21 with him, I -- I would welcome you to do that 22 because that's -- that's what he told me. 23 Q. So that's the totality of your knowledge and 24 the beliefs and opinions you just expressed 25 are based on what Deacon Vomastek told you? 202 1 A. Right, plus the e-mail that I've referred to 2 earlier that he -- there's a copy of an e-mail 3 he sent to Commander Axel reporting things and 4 part of that e-mail says, "We're gonna be 5 removing him tomorrow." 6 Q. Gil Gustafson abused a number of children and 7 was convicted, at least as it pertained to 8 one. 9 A. You're aware of that, correct? I know that he was convicted. I know that 10 there's been allegations of abuse of others. 11 I -- to the best of my knowledge, Gil 12 Gustafson has denied some of those, so I don't 13 know which ones he's admitted to and which 14 ones he's not to. 15 Q. Well, you were aware he was working at the 16 Chancery after having been accused and 17 convicted? 18 A. I'm not aware of that. I never saw him 19 working up there. 20 period of time I worked there. 21 Q. Certainly not during the You've made reference to the testimony of 22 Archbishop Nienstedt and that of McDonough, so 23 evidently you reviewed their depositions? 24 A. I read -- I read both of those, yes. 25 Q. What else did you review in preparation for 203 1 2 today? A. I looked at the Minnesota statutes 626.556, 3 Minnesota statutes 595.02, I looked at the 4 e-mails that I mentioned from Deacon Vomastek 5 to the police officer, and I think that 6 included some e-mails back to Deacon Vomastek. 7 And there was a few other documents, I think, 8 on the Minnesota Public Radio website that I 9 looked at, but I can't recall what those were. 10 MR. ANDERSON: 11 three. Why don't we take a short break? 12 THE WITNESS: 13 MR. KINSELLA: 14 (Recess taken) 15 MR. KINSELLA: 16 17 It's a little before Okay. Off the video record. Back on the video record 3:01 p.m. A. Mr. Anderson, before you ask your next 18 question, let me supplement my last answer. 19 think your question was what did I review, I 20 mean, prior to this deposition or anticipation 21 of this deposition. 22 other things that I now recalled reviewing. 23 One was simply a calendar of June 2012, and 24 not a calendar with calendar entries, just 25 simply a calendar with the dates and those I think there was two I 204 1 kind of things. 2 The other thing I reviewed was, I 3 think in about 2010, the Vatican or the Holy 4 Father issued a -- what they call a motu 5 proprio regarding SST, and so I think I took a 6 class in that at some point in time. 7 here I can't even remember why I looked at 8 that, quite frankly. 9 BY MR. ANDERSON: 10 Q. 11 12 That was my question: As I sit Why did you look at that? A. Yeah, I don't know. And I'm glad you said SST 13 earlier because I don't -- I can't speak the 14 Latin in words, sacramentois (ph) or 15 something. 16 Q. Well, don't bother. 17 Okay. You're aware that in 2010, 18 the archdiocese, after prevailing on the 19 statute of limitations in the Supreme Court on 20 John Doe 76C or the case of Jim Keenan versus 21 the archdiocese and Diocese of Winona, that 22 the archdiocese taxed costs against him, I 23 think in the amount of $64,000. 24 advise the archbishop to do that? 25 A. Yes. Did you 205 1 Q. Why? 2 A. Well, we -- well, again, I think the tax -- 3 the costs were taxed prior to the Supreme 4 Court decision, I believe. 5 Q. No. 6 It was after. MR. FINNEGAN: It was before. 7 Q. Okay. 8 A. And, obviously, it was a -- it was a 9 It was before. litigation strategy. I mean, if he has the 10 risks of paying us $64,000 in costs, maybe 11 he'll decide he doesn't want to appeal the 12 case, so it was purely litigation strategy. 13 Q. Do you think also think it sends a pretty 14 powerful message to the victims out there how 15 this archdiocese is going to want to treat 16 them if they have the courage to stand up 17 against them, doesn't it? 18 A. 19 20 Well, I don't know. That wasn't my consideration. Q. In any case, it was the archbishop's decision 21 to make, even though you may have advised 22 it -- 23 A. I don't know -- 24 Q. -- it was his decision? 25 A. I don't know that he decided. I believe I 206 1 probably would have communicated with the then 2 vicar general, whoever that was. 3 that I -- I never -- I don't think I talked to 4 the archbishop directly about the question. 5 Q. I don't know So who, then, is responsible for having made 6 that decision to tax that young man for having 7 stood up against the archdiocese and then lost 8 on the statute of limitations? 9 A. 10 I think I'll fully accept responsibility for that because it was my recommendation. 11 (Discussion out of the hearing of 12 the court reporter) 13 BY MR. ANDERSON: 14 Q. 15 16 trust? A. 17 18 You did discuss that with the archbishop, I No. I don't believe I did. I don't recall that I did. Q. After that was done and made public, did the 19 archbishop ever express disapproval of that 20 decision or make any effort to ameliorate the 21 harm done by it? 22 A. Well, no one had required Mr. Keenan to pay 23 any money, so certainly from a financial side, 24 purely financial side, there was no harm done. 25 Q. They were going to, though? 207 1 A. No. 2 Q. Well, okay. 3 A. I mean, ultimately, we did not tax costs and 4 5 I don't think that's true. But my question is -- probably could have, I think. Q. Costs were taxed, but then for other legal 6 reasons, it became non-feasible because he was 7 filing a bankruptcy. 8 A. Well, whatever. 9 Q. My question to you, though, is, did the 10 archbishop ever express anything to you about 11 the fact that, "Well, this isn't the right 12 thing. 13 statute of limitations and then go after the 14 victim the way the archdiocese did"? 15 A. 16 This is wrong to win a case on the The archbishop never expressed anything one way or the other to me about that. 17 Q. Do you think it is wrong? 18 A. No. 19 Q. There's been a lot of public discourse by the 20 archdiocese for years about zero tolerance and 21 caring for the wellness and the safety of the 22 survivors. 23 that survivor in that instance sends a message 24 that the archdiocese really cares about the 25 survivor and for their wellness? Do you think that that taxation of 208 1 A. Well, I certainly think that some people can 2 get confused about it and some people have 3 chose to mischaracterize the nature of that. 4 But your client had ample opportunity to 5 resolve that case in a fashion that could have 6 settled it and avoided that and he chose not 7 to take advantage of that, as you know. 8 Q. 9 His only requirement for settlement of that case was releasing the list, that was his 10 first requirement and there was no economic 11 requirement in front of that release of that 12 list. 13 every representative at every point in that 14 case, "You release the list and I'll talk 15 settlement." 16 archbishop refused to release that list, 17 correct? 18 A. And he said to this archdiocese and And the archdiocese and the Well, I think, unfortunately, we're getting 19 into some testimony about settlement 20 discussions. 21 Q. You started it. 22 A. Yeah, well -- 23 Q. That's correct, isn't it? 24 A. It was clear that that was his first item of 25 Go ahead. demand was the list. 209 1 Q. Yes. 2 A. Yeah. 3 Q. And any other discussion, it was 4 preconditioned on release of the list and the 5 names, correct? 6 A. 7 8 Well, he certainly wouldn't discuss any other issues without the list. Q. 9 Okay. Is there a written document retention policy in the archdiocese? 10 A. Like file retention? 11 Q. Yeah, file retention. 12 A. I believe that the archivist or record keeper 13 in the office has a re -- record retention 14 policy. 15 Q. And what is it? I mean, when it comes to, 16 let's say, a priest who might have offended in 17 the files, what would -- 18 A. Those files are never destroyed, never 19 disposed of in any way, shape or form. 20 They're kept forever, everything in the 21 priest's file. 22 Q. 23 24 25 Even if they were found to have not actually offended and were exonerated internally? A. Yes, everything is kept in the file, nothing's thrown away. Even a greeting card that the 210 1 priest might send to the archbishop could find 2 its way in that file forever. 3 Q. 4 5 radar? A. 6 7 When did Jon Shelley first come on to your Well, I had known Father Shelley for years back when I was in my old law firm. Q. In 2004, when Joe Ternus, T-e-r-n-u-s, turned 8 the computer over to Father McDonough, what, 9 if any, was your involvement at that stage? 10 A. None. 11 Q. And at that time Richard Setter was hired by 12 the archdiocese. 13 in that decision? Did you have any involvement 14 A. I did not. 15 Q. And Setter retained a forensic assessor to do 16 a forensic computer assessment of the images, 17 which were thought to have been potentially 18 child pornography. 19 prepared by both Setter and Johnson? 20 A. Did you see that report I -- at some point I saw parts of Setter's 21 report and parts -- and maybe all of Johnson's 22 report. 23 Q. In the Johnson report and in part reflected by 24 the Setter report, it described that the 25 images on that computer were potentially child 211 1 pornography, were they not? 2 A. I think it used the term "borderline." 3 Q. Okay. 4 A. Sometime in 2012. 5 Q. In 2004, you became aware that that computer And when did you first see that report? 6 had been turned over to the archdiocese and 7 the consultants hired and investigation done, 8 correct? 9 A. I didn't learn that in 2004. 10 Q. You learned that when? 11 A. Probably 2012. 12 Q. Okay. 13 A. No. 14 Q. Shelley was sent to St. Luke's and Kevin Did you ever see those images? 15 McDonough was involved in that decision on 16 behalf of the archdiocese. 17 aware of that? 18 A. Did you become At some point in time I became aware that he 19 had been sent to St. Luke, but that was not 20 until like 2012 as well. 21 Q. In the documents and both in the deposition of 22 Kevin McDonough, he specifically asked St. 23 Luke's some very limited questions and he 24 specifically restricts his questions to them, 25 instead of giving a broad overview of any 212 1 dangers or any other sexual history, he 2 specifically asks them to limit their inquiry 3 to two specific questions. 4 experience, has that been a common practice, 5 known to you, other than as reflected in the 6 Shelley matter, if it is so reflected? 7 MR. HAWS: 8 9 In your Object to the form and misstatement of Father McDonough's testimony. A. Yeah, I don't know what's reflected in 10 anything relating to St. Luke's and Father 11 Shelley and normally what Father McDonough 12 would communicate to St. Luke or another 13 treatment facility was his determination of 14 what he wanted them to reflect on. 15 BY MR. ANDERSON: 16 Q. Well, let me put it this way. The questions 17 he asked of St. Luke's were, one, whether 18 Shelley had a problem with compulsive interest 19 in pornography use; and two, whether he was 20 being honest and he only wanted answers to 21 those questions in the referral. 22 to you is, are you aware of limiting the 23 inquiry of St. Luke's, who were doing 24 assessments of possible offenders such as 25 Shelley? My question 213 1 2 MR. HAWS: A. Yeah, and I can't -- 3 MR. HAWS: 4 5 Same objection, it's a -- -- mischaracterization of the testimony. A. I'm sorry. I -- I can't say that I knew that 6 it had been done before or hadn't been done 7 before, I don't know. 8 BY MR. ANDERSON: 9 Q. I -- As it pertains to conversations between 10 yourself and the archbishop pertaining to 11 childhood sexual abuse and priests possibly 12 offending and the like, during your tenure as 13 chancellor, do you make any claim that those 14 conversations or any of them are privileged? 15 A. Well, certainly if he was seeking legal advice 16 as to those matters or if they were matters in 17 litigation where we were discussing legal 18 matters relative to litigation they might be 19 privileged, but normally, if he was just 20 seeking information or asking questions about, 21 you know, the background of a particular 22 matter, those I wouldn't characterize 23 necessarily as privileged unless it was a 24 predicate for asking my legal advice. 25 Q. Well, the decision to report, is that seeking 214 1 legal advice? "Is this a reportable offense?" 2 A. Well, it certainly can be, sure. 3 Q. Would that be privileged? 4 A. It can be. 5 Q. Did you ever -- did he ever seek your advice 6 on whether an offense should be reported? 7 A. No. 8 Q. Did you become aware in the Shelley matter 9 that after he was sent back -- sent to St. 10 Luke's and they answered the questions that 11 were asked, it was after that that the Setter 12 report and findings came back? 13 A. Again, that all happened before I became -- 14 into the chancellor's office, so I don't know 15 anything about that. 16 Q. 17 And I think that was shortly before you came into the chancellor's office, so when -- 18 A. Well, again, you -- you probably -- 19 Q. -- you came in 2005 -- 20 A. Late 2005, November 7th, 2005. 21 Q. So when you came in, none of that became known 22 to you immediately -- 23 A. Correct. 24 Q. -- that Shelley had been on the radar, that 25 there had been this problem and he was still 215 1 2 in ministry? A. Correct. At some point in time I learned 3 there was some issue, but initially that was 4 very, very limited in terms of what I learned. 5 Q. What did you learn at what point in time? 6 A. I'm not sure what point in time it was, but I 7 -- a call had come in and been directed to me 8 and there was a woman, and I recall her saying 9 something about that she was aware that Father 10 Shelley had been somehow involved with 11 sexually explicit materials or something along 12 those lines. 13 so, then, I communicated to Father McDonough 14 in some fashion and said, "I don't know 15 anything about this. 16 is saying. 17 don't remember what we did after that. I didn't know anything about it, This is what this woman What do you want to do?" And I 18 Q. Did you make a memorandum of that call? 19 A. I likely did. Either a memorandum -- either a 20 written memorandum or an e-mail if Father 21 McDonough was doing e-mail at the time. 22 Q. What year would that have been? 23 A. Well, it would have been somewhere between the 24 25 time I started and 2012. Q. I can't pin it town. McDonough said he wasn't really using e-mail, 216 1 2 I think, until later -A. And, again, I don't know if I would have done 3 it by e-mail. 4 and if so, I'm guessing there should be a copy 5 in Father Shelley's file. 6 Q. I could have done it by memo, The woman or the caller said that he was 7 involved in sexually explicit material. 8 it child pornography? Was 9 A. I don't remember how she characterized it. 10 Q. Did it alarm you enough to go back to 11 Shelley's file and say, "We better go back and 12 look into this and what's the history on this 13 guy?" 14 A. No. Because Father McDonough would have known 15 that, so that's why I referred the call to 16 him. 17 Q. 18 19 And what was McDonough's response to you when you referred the call to him? A. As I said -- I didn't refer the call to him. 20 I referred the information I had gotten from 21 this woman to him. 22 response was. 23 a response from him, I don't know that. 24 25 Q. I don't recall what his And I may not have even gotten In any case, Shelley continued as he had, which means he was active in ministry, 217 1 2 correct? A. 3 4 I think Father Shelley was in a parish at the time this call came in, yeah. Q. And that call did not trigger, to your 5 knowledge, McDonough to have done anything 6 different as a result of that than had been 7 done before, which means keeping -- 8 A. 9 Right. I mean, what I related to Father McDonough was that this woman didn't have any 10 information of her own knowledge. 11 repeating some rumor or something she had 12 heard in the community. 13 firsthand knowledge or anything that was -- 14 would be helpful. 15 something in the community. 16 Q. She was She had no direct She was just repeating But you now know that in this -- included in 17 the Shelley file was the whole St. Luke's 18 report, the seizing of the -- or the taking of 19 the possession of the computers, the 20 destruction of the computers, and also that 21 the analysis done showed he'd been in 22 possession of borderline child pornography, 23 you knew all those things? 24 25 A. No. I would not agree with that characterization. First of all, I -- I -- 218 1 I've never heard anybody suggesting that a 2 computer was destroyed. 3 report speaks for itself, I guess. 4 the term borderline, from what I can recall, 5 but I would not have looked at or seen the -- 6 the St. Luke material or anything. 7 thing I was ever aware of in the St. Luke 8 material, I think at some point in time in 9 early 2012, Jennifer Haselberger wrote a And, I mean, the It uses The only 10 memorandum and I think I've seen that referred 11 to the St. Luke report, that's what I 12 remember. 13 Q. Okay. We'll get to that. In 2008 there's 14 indication that Shelley is reported to have 15 been allowed to have or was living with an 16 18-year-old parishioner. 17 your attention? Did that come to 18 A. No. 19 Q. Does that alarm you that he had, given the 20 21 history you now know? A. Well, I -- at some point in time we -- we even 22 had discussions about the rules around 23 rectories and whether priests should have 24 anybody living in the rectories, even family 25 members, so anytime -- excuse me -- anytime 219 1 there was questions that came up about 2 somebody living in a rectory, for example, you 3 know, there was -- would be follow-up 4 questions about that. 5 think we actually drafted a policy around that 6 to -- to make sure that people were doing what 7 they were supposed to be doing regarding those 8 things. 9 Q. And, eventually, I And to your knowledge, in 2008 or at anytime, 10 was any disciplinary action or investigation 11 conducted concerning Shelley responsive to the 12 report you got or the knowledge in the file 13 that he was living with an 18-year-old? 14 A. I wouldn't describe what I got as a report. 15 Q. Okay. 16 A. I think I've already answered that question. Well, whatever -- 17 And regarding him living with an 18-year-old, 18 I don't know anything about that. 19 Q. In 2012, February, Haselberger found 48 20 restricted files archived in the archdiocese 21 that she says were moved to the basement 22 without reference to being in the personnel 23 file. 24 25 A. What do you know about that? Nothing. I mean, I've heard that comment somewhere, I'm not sure where I've heard that 220 1 comment. 2 Q. Did you read that memo? 3 A. I don't recall that. I mean, I know Jennifer 4 raised a question about some files that were 5 in the basement and the chancellor's office is 6 responsible for the files, so Jennifer was 7 questioning, you know, where these things were 8 or where they should be kept, et cetera, et 9 cetera. 10 Q. 11 12 So it says 48 restricted files. What are those files? A. I don't have a clue what she's talking about. 13 I never understood what she was referring to. 14 As far as I know, we had all the restricted 15 files. 16 Q. She also found a banker's box of three-ring 17 binders, including the Setter report and the 18 findings that were made in 2004. 19 aware that there was a three-ring binder in 20 there, in the Shelley file, including the 21 Setter report? 22 A. Were you Well, I ultimately saw parts of the Setter 23 report. Any time Setter did an investigation, 24 he prepared a three-ring binder, so for any 25 investigation that was undertaken by Richard 221 1 Setter, there should be a three-ring binder 2 somewhere in the Chancery, with the priest's 3 file or referenced in some fashion that the 4 archives and records people can retrieve it. 5 How they set up those files, they decide that, 6 that's why we have an archives -- or had a -- 7 have an archives and records department. 8 Q. 9 10 There's also DVDs. Do you know anything about those that she references? A. Well, Mr. Ternus, is my understanding, had 11 copied material from the computer hard drive 12 of the computer that he said was Father 13 Shelley's on a DVD, or somebody had, I don't 14 know who. 15 Q. 16 17 No. These are the ones found by Jennifer Haselberger before Ternus went back. A. 18 Yeah, Ternus was the guy who gave the stuff to the arch -- archdiocese to begin with. 19 Q. Okay. Excuse me, go ahead. 20 A. So some -- so either Mr. Ternus or somebody 21 else had copied the material on the hard drive 22 onto some DVDs. I've never seen them. 23 never saw them. But what I've heard described 24 is those DVDs were in the file. 25 Q. I And do you know what happened to the computer 222 1 2 or the hard drives? A. Other -- other than what I've heard Father 3 testify -- Father McDonough testify that he 4 doesn't, I think, know what happened to the 5 hard drive. 6 MR. KINSELLA: 7 to change media. 8 (Recess taken) 9 MR. KINSELLA: 10 record, time is 3:24 p.m. 11 BY MR. ANDERSON: 12 Off the video record Q. Back on the video In 2012, did Jennifer Haselberger urge you to 13 come down to the file storage, wherever they 14 were, and look at those Shelley files to 15 demonstrate to you that this was illegal child 16 pornography? 17 A. 18 Well, the way you framed your question, I'd have to answer no. She did -- 19 Q. Well, did she -- 20 A. She did ask me to look at the -- some of the 21 images that were on something, I don't know 22 what they were on. 23 Q. 24 25 And she was concerned that they were illegal images, child pornography, correct? A. Yes. 223 1 Q. What was your response to her? 2 A. I told her I was not gonna look at those 3 images. 4 Q. What did you tell her to do? 5 A. I told her if she thought they were illegal, 6 7 she should report it to the police. Q. And was there any discussion with anybody else 8 about her exhortation to you and your 9 response? 10 A. I reported it to Father Laird and I -- as far 11 as I know, he -- he had the same response for 12 her when she reported it to him. 13 Q. Did you report it to Laird immediately? 14 A. Well, I -- I don't know what you mean by 15 "immediately," but it would have been within a 16 day or two of her having -- and -- and it was 17 more than one occasion that she said to me 18 that she thought this stuff was illegal. 19 Q. 20 21 How many times did she tell you that she thought it was illegal? A. 22 Well, at least twice. I don't know if it was more than twice. 23 Q. And she based it on her viewing of the images? 24 A. Correct. 25 As far as I know. that she did anything else. I didn't know She hadn't 224 1 2 consulted with anyone else. Q. 3 Did she tell you that she had presented it to the archbishop or intended to? 4 A. No. I never learned that till much later. 5 Q. How did you learn that she had? 6 A. I think in the news reports, as far as I know. 7 I don't remember that I heard about it before 8 the news reports. 9 Q. And her attention was drawn to this because 10 they were looking at Shelley for another 11 assignment? 12 A. Correct. 13 Q. And even after she had urged you to look at 14 this and expressed these concerns, are you 15 aware that Shelley was allowed to continue in 16 ministry and then report to the parish that he 17 was going onto sabbatical? 18 A. Well, I know that Father Shelley remained in 19 St. Hugo until the merger of St. Hugo with St. 20 Genevieve. 21 was, and especially am not certain when that 22 was in relation to whenever Jennifer was 23 raising these issues about the material. 24 25 Q. I'm not certain I know when that Well, he reported to the parish that he had requested a sabbatical and it had been granted 225 1 by the archbishop -- 2 A. I know nothing -- 3 Q. -- do you dispute that? 4 A. I don't know anything about that. 5 Q. If that was the case, that would be kind of a 6 -- do you think that was a misrepresentation 7 to the parishioners about his reason for his 8 departure? 9 A. Well, I think they were putting him on a 10 sabbatical till they decided what assignment 11 they were gonna give him, if they were gonna 12 give him an assignment. 13 Q. Don't you think that the parishioners were 14 entitled to know that Shelley had a history 15 that went back to 2004 that could pose a risk 16 of harm or danger to the youth? 17 A. I think you're mistaken there, that -- that 18 the conclusion that was drawn from the review 19 of that material was that it was not child 20 pornography, it was not illegal. 21 question presumes that he had engaged in some 22 kind of illegal conduct and he hadn't, 23 apparently, according to the investigation 24 that was done at that time, which has since 25 been confirmed by police and prosecution So your 226 1 2 authorities. Q. That was in an internal investigation done by 3 the archbishop investigators, correct, and the 4 archdiocese officials that made the 5 determination? 6 A. Well, they hired -- 7 Q. -- not external or law enforcement in 2004, 8 9 correct? A. Well, to the best of my knowledge from what I 10 learned, largely from Jennifer Haselberger, 11 what had been done was Richard Setter and this 12 Johnson guy, and Johnson was apparently an 13 expert in the area. 14 Q. 15 And they're the ones that found it to be -have been borderline? 16 A. Correct, which means it's not illegal. 17 Q. No. 18 A. Well, I think it's argumentative, counsel. It means it's reportable. 19 It's -- it was considered borderline, it's not 20 reportable for a variety of reasons, if you'd 21 bother to do the legal research. 22 Q. 23 I have, and the statute says, "suspicions or reason to believe," and if it's borderline -- 24 A. I think you better -- 25 Q. -- it's suspicion or reason to believe? 227 1 A. -- read the statute, counsel. Would you like 2 to take a break and read the statute and go 3 see if it has the word "suspicions" in it? 4 Q. Well -- 5 A. It says, "know or has reason to believe." 6 Q. It's been interpreted to mean "suspicions" and 7 8 the statute says -A. 9 Again, I'm not gonna -- I'm not gonna argue with you about it. You know what? I wasn't 10 there in 2004, so I wasn't involved in the 11 decision to report it. 12 when I learned about it in about 2012, the 13 matter was obviously eight years later. 14 Q. 15 16 All I know is that In any case, were you aware that the parish -the parishioners threw him a big party? A. I'm not aware of that -- well, I shouldn't say 17 it. 18 characterizing that in the media, but that's 19 the only source of that information. 20 Q. 21 I've since read you or somebody Doesn't this thing alarm you, this Shelley thing? 22 A. No. 23 Q. Were you aware that a letter was drafted to 24 the CDF on Cardinal, then prefect Levada, 25 concerning the archbishop's concerns that his 228 1 advisors are telling him that he may be in 2 violation of law by reason of possession of 3 child pornography? 4 A. Again, counsel, you're mischaracterizing the 5 letter. 6 Haselberger expressing what she perceived to 7 be her view of the matter. 8 reflective of the archbishop's view, which was 9 just the opposite on that. 10 Q. 11 12 The letter was drafted by Jennifer It was not There are notations -- it's on the archbishop's signature, isn't it? A. 13 I don't think he ever signed the letter. I know it got sent. 14 Q. But it was prepared for the archbishop? 15 A. Well, sure, that was a common practice that 16 Jennifer would be the one that would prepare a 17 letter if it went to Cardinal Levada. 18 Q. 19 20 archbishop, aren't there? A. 21 22 And there's handwritten notes on it by the I don't know. I've never seen the handwritten notes by the archbishop. Q. 23 Then why are you telling me what that letter is about when you say you haven't seen it? 24 A. Because I've heard him comment about it. 25 Q. So you're making your assertions under oath 229 1 about what the archbishop's letter said 2 without having read it, is that what you're 3 saying? 4 A. 5 Right, because she's saying that it -- he even said that it mischaracterized his view. 6 Q. We got it. 7 A. Okay. 8 Q. You haven't read the letter, right? 9 A. No. 10 I have read the letter, but I didn't read his handwritten notations. 11 Q. So you don't know what he wrote on it? 12 A. I don't. 13 And I'd be happy to review those if you want to share it with me. 14 Q. Those notes speak for themselves. 15 A. Okay. 16 Q. I don't need you to speak for him -- 17 A. Okay. 18 Q. -- on that. 19 A. And to use Mr. Finnegan's words, I don't 20 necessarily want to be contentious, but I 21 think it's important that we get to the truth 22 about the question. 23 Q. Well, I think it's also important that you 24 talk about what you know about it. If you 25 don't know about the notes in the letter, 230 1 2 don't tell me what they say. A. I didn't. 3 4 A. MR. HAWS: Counsel -- MR. HAWS: -- you've been arguing I didn't. 5 6 with the witness the entire day and testifying 7 yourself, which is not necessarily truth, it's 8 what you say exists, so let's just get to you 9 questioning the witness. 10 11 BY MR. ANDERSON: Q. 12 Were you involved in the reporting or the consideration of reporting to the CDF -- 13 A. No. 14 Q. -- the Shelley matter? 15 A. The only thing I know is that Jennifer had 16 prepared that letter, she wanted the 17 archbishop to sign it and hand deliver it to 18 Cardinal Levada because he was going to Rome 19 and the archbishop refused to do that. 20 that because -- and I only knew that because 21 Jennifer told me. 22 Q. 23 I know Did the archbishop say anything to you about that? 24 A. No. 25 Q. And what did Jennifer say to you about what 231 1 2 the archbishop said to her? A. Just that she was mad that he refused to hand 3 carry the letter to Rome. 4 Jennifer led me to believe that the letter had 5 been signed and mailed to Rome and apparently 6 that's incorrect, it was never signed and 7 mailed to Rome. 8 Q. 9 And, in fact, He actually went to Rome shortly after the preparation of that for the -- is it the 10 quinquennial visit? 11 MR. FINNEGAN: 12 Ad limina. BY MR. ANDERSON: 13 Q. -- ad limina visit? 14 A. Right. 15 Q. Yeah. 16 And do you know anything about what was discussed at the ad limina visit? 17 A. I do not. 18 Q. I may have asked you this, but at any time did 19 you review any of the images pertaining to 20 Shelley? 21 A. 22 25 And you did ask me that before. MR. HAWS: 23 24 No. Several times. BY MR. ANDERSON: Q. And is that the one where Jennifer asked you to and you said, "No. If you think they are, 232 1 report it"? 2 A. Correct. 3 Q. There was, in the records that we've reviewed, 4 it appears in 2013 some contention, 5 disagreement about whether or not Shelley -- 6 maybe in 2012, too -- should be allowed in 7 ministry and Haselberger arguing against that. 8 Are you aware of that? 9 A. 10 Yes, eventually she was against Shelley remaining in ministry. 11 Q. Did you take a position? 12 A. No. And -- and it was an odd sequence of 13 events, which I can describe, but I didn't 14 take a position. 15 confused about what Ms. Haselberger was doing 16 relative to Jon Shelley. 17 Q. 18 19 I -- I actually became very Who advocated for his continuation in ministry to the archbishop? A. Well, actually, Jennifer was part of the 20 advocacy, if you want to use that word, 21 although I think that's poor -- a poor word. 22 Sometime in 2012, Jennifer actually drafted a 23 memorandum setting forth what I would describe 24 perhaps as an outline of an action plan that 25 would allow Father Shelley to return to 233 1 ministry, and she had a number of elements in 2 that plan that would allow that if certain 3 things happened. 4 Q. Did Kevin McDonough share with you his 5 analysis that, and belief that, you know, a 6 large percentage of those viewing pornographic 7 images on the Internet are created and/or 8 monitored by law enforcement, and if he's not 9 caught having done it, he's not guilty of it 10 and, thus, should be continued in ministry? 11 Did you ever hear that position stated or made 12 by him? 13 A. Not by him or -- 14 MR. HAWS: 15 16 testimony. A. 17 18 Q. I paraphrased it, but took it from the documents. A. 21 22 Not by him or anybody. BY MR. ANDERSON: 19 20 Objection, misstates Yeah, I've never heard it from -- that -- I've never heard a statement like that from anyone. Q. There's some discussion and dispute about 23 whether there was child pornography and Kevin 24 McDonough's assertion, according to the 25 documents, about whether they were pop-up ads 234 1 and Jennifer Haselberger took a different 2 view, stating that these are not pop-up ads 3 and it's not a -- that's not a feasible 4 position. 5 A. No. I -- 6 MR. HAWS: 7 8 Do you have any knowledge of that? and the evidence, but go ahead. A. 9 Yeah, I -- there was never a discussion about pop-up ads that I was aware of. 10 (Discussion out of the hearing of 11 the court reporter) 12 BY MR. ANDERSON: 13 Misstates the testimony Q. Did you ever have discussions with Archbishop 14 Nienstedt about whether Shelley should be 15 reported and it should be a matter for the law 16 enforcement to decide? 17 A. No. 18 Q. Why not? 19 20 He's a mandatory reporter and you're his advisor. A. Well, I can probably best describe that -- my 21 response to that question as working from the 22 present back. 23 officers, the Ramsey County Attorney's office, 24 the Washington County Attorney's office, the 25 National Center for Missing and Exploited Multiple St. Paul police 235 1 Children and the justice department's task 2 force on Internet crimes against children have 3 all reviewed the material and all come to the 4 same conclusion, it's not illegal child 5 pornography. 6 characterized that as illegal child 7 pornography is Jennifer Haselberger. 8 she's not a mandated reporter, she was 9 repeatedly advised by me and Father Laird to The only person that has ever While 10 report it if she thought it was illegal. 11 it's not illegal material, so it didn't need 12 to be reported and that's always been the 13 position of me and others within the 14 archdiocese. 15 Q. On March 5th, 2013, the police showed up at 16 the Chancery and they met with you and Joe 17 Kueppers and they asked about a priest and 18 possession of child pornography, correct? 19 A. Correct. 20 Q. And you didn't know what priest they were 21 22 So talking about, right? A. They didn't identify which priest they were 23 talking about and I asked them that, who are 24 they referring to. 25 Q. Yeah, and you said, "Well, I don't know, 236 1 there's" -- I mean, how many priests did you 2 know had been in possession of child 3 pornography -- 4 A. None. 5 Q. -- or suspected of having been in possession 6 7 of child pornography in that time? A. 8 Well, certainly Jennifer had raised the question about Father Shelley. 9 Q. So you knew Shelley had been? 10 A. Well, and I assumed that Jennifer had reported 11 12 this and that's why they were there. Q. 13 14 And then why did you deny that you knew that it was Shelley they were investigating? A. I didn't deny that. I said, "Who are you 15 talking about?" And they said they didn't 16 know, they couldn't identify the priest. 17 I said, "Well, if you tell me who the priest 18 is, assuming it's who I think you're going to 19 be referring to, we'll get you the material." 20 Q. And why didn't you -- 21 A. Which we did, I might add. 22 Q. Yeah; how many days later? 23 A. Within the next day or two. 24 Q. No. 25 A. It was. And It wasn't. We got it to Tom Wieser and he got it 237 1 to the police as quickly as the police could 2 get over and pick it up. 3 Q. Why didn't you turn it over to them right then 4 and there when it was in the Chancery and say, 5 "Come on down" -- 6 A. 7 8 priest. Q. 9 10 Because they didn't have the name of the You knew the name of the priest because you knew -- A. I wasn't gonna speculate that that was the 11 same thing that Jennifer Haselberger had been 12 talking about. 13 Q. You were trying to protect the priest -- 14 A. No. Not at all. 15 MR. HAWS: 16 argumentative. 17 BY MR. ANDERSON: 18 Q. Objection, it's If you knew that they were investigating -- 19 you suspected that Haselberger had reported 20 Shelley and they're coming, looking for a 21 priest who was in possession of child 22 pornography, you knew in your mind who they 23 were looking at, you chose not to tell them 24 and you chose not to let them into the files, 25 correct? 238 1 A. What I told them is -- 2 MR. HAWS: 3 improper, counsel. 4 BY MR. ANDERSON: 5 Q. It's argumentative and You can answer. 6 MR. HAWS: No. It's improper and 7 argumentative, and you know it. 8 question -- 9 BY MR. ANDERSON: 10 Q. You can answer it. 11 Ask a Go ahead. MR. HAWS: And don't make threats 12 and accusations. It's completely 13 inappropriate and unprofessional, I might add. 14 BY MR. ANDERSON: 15 Q. You can go ahead. 16 A. I told them when they identified the priest, 17 we'd turn the material over. 18 Q. Okay. 19 A. Which we did. 20 Q. Why didn't you do it right that minute? 21 A. Because they didn't have the name of the 22 23 priest. Q. 24 25 You just told us you told them right away you'd turn it over, right? A. Right. As soon as they identified who was -- 239 1 was the subject of their investigation, if it 2 was who I thought it might be, then I would 3 turn the material over. 4 Q. So you were being cagey? 5 A. No. 6 7 I think they were being sloppy. Q. 8 9 I was not being cagey. You didn't want to cooperate with them, did you? A. Well, counsel, they came in and they said, "We 10 want the file on the priest involving child 11 pornography." 12 child pornography because that had been the 13 conclusion of our investigation. 14 them that. 15 name of the priest, if it's who I think you're 16 talking about, we'll provide the material to 17 you," which they -- we did. 18 Q. 19 20 Our position was there wasn't a And I told And I said, "Once you get me the Why did you have to go to Mr. Wieser first? Why didn't you just do it? A. Because we were gonna turn the material over 21 to him so as soon as they -- as soon as they 22 identified the priest, Mr. Wieser could turn 23 it over to them. 24 25 Q. What would have been the harm in simply saying, "Look, I know that Shelley is the guy, 240 1 and come on down and look at this"? 2 that confident that it wasn't child 3 pornography and you're that confident the 4 archbishop wasn't in possession of it and 5 you're that confident the archdiocese had been 6 in compliance with the law, why didn't you 7 just go down there and say, "Here it is. 8 a look for yourself"? 9 A. I didn't do that, counsel. 10 Q. Why didn't you? 11 MR. HAWS: 12 13 If you're Take Objection, it's argumentative -A. I didn't do it. 14 MR. HAWS: 15 multiple times. 16 BY MR. ANDERSON: -- and it's been asked 17 Q. I know, but why didn't you? 18 A. Because I didn't. 19 Q. Well, for every action there's a motivation; 20 21 what was your motivation? A. There was -- there was no motivation. I had 22 no motivation whatsoever. I was prepared to 23 turn the material over if they identified 24 Father Shelley as the subject of their 25 inquiry. 241 1 Q. 2 3 Well, you went, then, to Mr. Wieser with it, right? A. No. Mr. Kueppers arranged to get the material 4 to Mr. Wieser because I wasn't working in the 5 Chancery at that point in time. 6 Q. 7 8 The archdiocese refused to turn over the Setter report to law enforcement? A. 9 No. Actually -- actually, apparently we did turn it over. 10 Q. Eventually. 11 A. No, no. Apparently, the material, the disks 12 we gave them had the Setter report, including 13 Johnson's report. 14 Q. There's some question about the disks that got 15 turned over and the disks that were in 16 possession of the archdiocese originally. 17 you know what disks were turned over to the 18 police? 19 A. I've never seen the disks. 20 Q. Okay. 21 A. And it's further my understanding that Mr. 22 Ternus kept copies of all the disks. He 23 subsequently has turned them over and 24 apparently they've confirmed that all the 25 material is the same material. Do 242 1 Q. How many disks were there? 2 A. I don't know. 3 Q. From what do you understand that to be? 4 A. I -- Joe Kueppers or somebody told me there Three, I understand. 5 were three disks or Tom told me that, one or 6 the other. 7 Q. It was two days later after the March 5th 8 visit by the police where they requested the 9 information and that three disks were turned 10 over. 11 A. Yeah, two days, okay. 12 Q. Two days. 13 A. After they'd been sitting in our files for 14 eight years, we took two days to get them to 15 them. 16 the -- the -- to Mr. Kueppers who the priest 17 was, Tom turned them -- Tom contacted Father 18 -- or Officer Gillette or whoever it was. 19 But, yes, as soon as they identified (Discussion out of the hearing of 20 the court reporter) 21 BY MR. ANDERSON: 22 Q. 23 24 25 Are you aware of the search terms that were found on the Setter report? A. I think I heard Jennifer mention some search terms. I only have a vague recollection of 243 1 2 that. Q. If one of the search terms was -- let me see. 3 "Free naked boy pictures," would that concern 4 you that's an interest in minors? 5 A. 6 7 I'm not gonna speculate. I -- I don't remember what terms she shared with me. Q. I'm referring to Exhibits 38 and 47 in terms 8 of search terms. 9 search term: It also lists the following "Hard core teen boys." Isn't 10 that suspicious of an interest in child 11 pornography? 12 A. I -- I'm not gonna characterize it one way or 13 the other. 14 about those kinds of search terms. 15 Q. I don't -- I don't know anything I'll quote another search term. 16 MR. HAWS: 17 Is this a search term that the experts are using? 18 MR. ANDERSON: 19 MR. HAWS: 20 The police report. And that they didn't find anything? 21 MR. ANDERSON: These are search 22 terms on the Shelley computer that were 23 identified. 24 25 A. Well, counsel, to help you, I don't remember any of the search terms that Jennifer might 244 1 have shared with me, and it -- and it was like 2 one or two. 3 BY MR. ANDERSON: 4 Q. 5 6 Well, you saw the Setter report. I'm asking you -A. No. I saw parts of Setter's report is what my 7 testimony was. I didn't see any search terms. 8 I don't recall any search terms. 9 Q. This comes from Setter report -- 10 A. I don't -- 11 Q. -- and the police investigation. 12 A. -- care where it comes from. I'm telling you 13 I don't recall any of those things and I -- I 14 -- and I'm not prepared to characterize what 15 that -- what that means. 16 Q. When I use the quote from the report that 17 shows the search term "European teen boys," 18 does that cause concern that that might be a 19 reason to believe there's an interest in 20 minors or child porn? 21 A. 22 23 I don't have any knowledge of what those things mean. Q. "Helpless teen boys." Is that suspicious or 24 reason to believe that he may be in possession 25 of child pornography? 245 1 A. Same -- 2 MR. HAWS: So, counsel, is this for 3 you and your news media report after the 4 deposition? 5 testified he has no knowledge of any of this 6 and it's your gamesmanship -- Because this witness has 7 MR. ANDERSON: 8 MR. HAWS: 9 -- and it's inappropriate. 10 11 MR. ANDERSON: This is a witness that chose -- 12 MR. HAWS: 13 MR. ANDERSON: 14 This is a -- Counsel --- not to cooperate with the police or even tell 'em -- 15 MR. HAWS: 16 MR. ANDERSON: And is making a claim 17 This has nothing -- -- and is making a claim -- 18 MR. HAWS: -- to do with your case 19 and this deposition and I believe that the 20 judge would not be pleased to know this is 21 where we're going. 22 overboard and has nothing to do with the 23 deposition or the Doe 1 case under which we 24 sit today. 25 you're doing this. This has gone so far This is almost embarrassing that It's completely unfounded 246 1 and it's unprofessional to this witness and 2 it's only for your own purposes. 3 as an officer of the court to move on and ask 4 questions that this witness is here to answer 5 honestly and truthfully what he knows and not 6 just do your games. 7 MR. ANDERSON: I'd ask you This is a nuisance 8 and a negligence claim, this is a claim and 9 this is about the protection of these 10 children. 11 events, counsel, and if you don't care about 12 these kids, I do and that's why we're here 13 today. 14 This is very current and recent So that's my speech to you -MR. HAWS: You're the only who 15 cares, right, counsel? You're the only one 16 who cares about children, is that what you 17 say? 18 MR. ANDERSON: Well -- 19 MR. HAWS: And you know that's not 20 accurate, either, do you? 21 just for your own benefit? 22 professional whatsoever. 23 24 25 MR. ANDERSON: And is that again That's, again, not It's responsive to your dialogue. MR. HAWS: No. It is not. 247 1 2 BY MR. ANDERSON: Q. Are you aware that the police determined and 3 that Setter determined that Shelley was the 4 only one that had exclusive use of that 5 computer? 6 A. I'm not -- I am -- that's not true. I -- I 7 never heard the police say that and that 8 wasn't Setter's position, either. 9 Q. So that's news to you, if it's true? 10 A. Well, I think Mr. Johnson expressed a view 11 about that, I don't know that Mr. Setter did. 12 Q. What was Johnson's view? 13 A. In his opinion, that only Father Shelley had 14 access to some of those sites because he had a 15 password. 16 Q. 17 Okay. I'm going to turn to Keating and we've made some reference to that earlier. 18 (Discussion out of the hearing of 19 the court reporter) 20 BY MR. ANDERSON: 21 Q. Before I do, there's some reference somewhere 22 to the archbishop's council and that was not a 23 term that I had seen before. 24 archbishop's council? 25 A. What was the Well, it's the archbishop and some of his 248 1 advisors, the chancellors, the vicar general. 2 The council has also included at times the 3 regional vicars, the finance officer, 4 auxiliary bishops, I think that's it. 5 Q. 6 7 Archbishop Nienstedt under his -A. 8 9 Is that something that was constituted by There was also an archbishop's council under Archbishop Flynn as well. Q. I just haven't seen that term before. Do you 10 know what the council is used for? 11 like consulters or any specific purpose, do 12 you know? 13 A. Are they Well, we start out with a song and a prayer 14 and then the archbishop normally reports on 15 certain matters. 16 they've put something on an agenda, can raise 17 an issue that would be helpful for the council 18 to hear or know about or some of it's FYI 19 stuff. 20 Q. And then anybody else, if Is there anything in the archbishop's council 21 meetings that have been discussed by those in 22 attendance pertinent to the whole question of 23 sexual abuse of minors by the clerics in or 24 out of ministry and -- 25 A. I don't think so. I don't recall a meeting 249 1 2 ever discussing that subject. Q. 3 Is that something that gets recorded by minutes or notes or is it -- 4 A. The council meeting? 5 Q. Yes. 6 A. There's -- at times there was an agenda that 7 if you wanted something to -- to be brought up 8 at council they wanted you to put it on an 9 agenda, but there's no minutes of the 10 11 meetings, as far as I know. Q. 12 Okay. I'm going to go to Keating, and we'll talk about the girl, I refer to her as Doe 20. 13 A. Yeah. 14 Q. Do you know if anybody from the archdiocese 15 ever asked Father Keating his account of the 16 events pertaining to Doe 20 or any of the 17 other possible encounters? 18 A. 19 20 The clergy review board did. I don't know about anybody else. Q. The clergy review board is constituted by the 21 archbishop to help make a determination -- 22 help the archbishop make a determination about 23 whether Keating should be continued in 24 ministry, correct? 25 A. Well, the clergy review board exists for two 250 1 purposes, one is to help the archbishop 2 ascertain someone's fitness for ministry, but 3 they can also be utilized to help the 4 archbishop determine the credibility of 5 allegations. 6 turned over to the clergy review board 7 involving Father Keating, I think it was more 8 the latter than the former to help the -- 9 Archbishop Flynn come to some conclusion about 10 the credibility of the allegations that Doe 20 11 was making. 12 Q. 13 So I think when the matter was Would the clergy review board record the testimony that was taken? 14 A. No. 15 Q. Beyond the findings that they made that 16 substantiated or not substantiated, is there 17 any record of their deliberations or their 18 findings beyond that? 19 A. The only record that I would be aware of is, 20 once they had discussed the matter, then it 21 was normally the chair would draft a proposed 22 recommendation and circulate it among them for 23 their comment and further refining of that 24 recommendation before it went to the 25 archbishop, once they all agreed with it or 251 1 the majority of them agreed with it. 2 the chair did that in that instance and saved 3 earlier drafts of that, they might exist. 4 that's the only record that I'm aware of. 5 Q. So if Was the clergy review board divided in their 6 decision concerning Keating and the report 7 made by Doe 20? 8 A. 9 I didn't -- I can't say that I was there for all of their deliberations, but I don't -- I 10 11 But didn't sense there was much division. Q. Did you find it troubling in your own view 12 that they found that it was not a 13 substantiated claim, having seen the video and 14 having done some investigation? 15 A. Frankly, no. 16 Q. You didn't believe her? 17 A. No. 18 Q. Why? 19 A. I thought she was very mixed up and confused. 20 It's not a view I shared with the clergy 21 review board, but that was my own personal 22 feel of it. 23 Q. Did anybody in the clergy review board express 24 why they found the claims to have been not 25 substantiated and, thus, sending the message 252 1 2 that she wasn't believed? A. I think the sense was -- first of all, I think 3 they were of the belief that she believed 4 something had happened, but I think the fact 5 that she hadn't characterized her relationship 6 with Keating as abusive until after she took a 7 coursework in college that somehow touched on 8 that topic that she began to re-evaluate her 9 relationship with Father Keating. The fact 10 that she seemed with each telling of her story 11 to have -- embellish is not a good word, but 12 that she had, you know, continued to increase 13 her description of the extent to which there 14 had been any kind of physical or sexual 15 contact, and the fact that she seemed to be, 16 again, very troubled and confused in some 17 fashion. 18 question about the nature of the family 19 dynamics within that family. 20 Q. 21 22 And I think there was also the Well, what did that have to do with whether or not Keating sexually abused her? A. Well, I think that she was describing, for 23 example, Father Keating reading to all of the 24 kids with the mom being there and that as part 25 of that he'd be touching her, having her lie 253 1 on top of him, and there was a real question 2 about how that could have occurred in the 3 presence of all of these others. 4 point in time there was a photograph of her 5 lying with Father Keating and the question of, 6 you know, where -- who took this photograph 7 and where could this have -- you know, they -- 8 they viewed that as really odd. 9 Q. At some Is that a word or a characterization that some 10 of them used or just your interpretation of 11 what they saw? 12 A. Well, I think they were troubled by what they 13 saw as the dynamic in that family, that -- and 14 -- but I think they were also troubled that 15 Father Keating was a bit clueless in 16 recognizing that as well. 17 Q. Now, Keating did get placed on some 18 restrictions. 19 adhered to? 20 A. To your knowledge, were those As far as I know. Although, I -- I seem to 21 recall at some time there was some question 22 about whether he was adhering to some 23 restrictions and there were some questions 24 that were raised, primarily by the archbishop. 25 And this -- now I'm talking about Archbishop 254 1 Nienstedt. 2 made by the clergy review board to Archbishop 3 Flynn, I believe. 4 Nienstedt came on board, he actually became 5 friends with one of the -- Doe 20's brothers 6 and I think he began learning from the family 7 some of their concerns about what had -- what 8 had been done by the clergy review board and 9 what restrictions that had been imposed and 10 whether Father Keating was abiding by those 11 restrictions. 12 and I'd say, "Well, Father McDonough's the go- 13 to person with St. Thomas," which was later 14 where Father Keating was, "and so we'll have 15 to ask Father McDonough where they're at," and 16 all of that. 17 Q. The original recommendation was And then when Archbishop So the archbishop would ask me At some point in time, I think the family was 18 led to believe that he was on some kind of 19 supervision or monitoring or restriction. 20 you know if they -- if he ever was on 21 monitoring? 22 A. Do I thought that the recommendations made by the 23 clergy review board, and I don't remember 24 those specifically and I haven't reviewed 25 those in years, but I thought they were being 255 1 followed and I thought a monitoring plan had 2 been set up. 3 being really raised, other than the ones I 4 just described, was at some point in time 5 Father Keating was to go to Rome and do some 6 teaching or something in Rome, and a question 7 arose about how he would be monitored in Rome. 8 And there was somebody that was identified 9 that would do that monitoring while he was in The only question I remember 10 Rome, so that, too, led me to believe that the 11 monitoring was being -- that was supposed to 12 take place was taking place. 13 Q. In May of 2010, Father Piche says that Keating 14 never went on monitoring. 15 knowledge of -- 16 A. Do you have any Again, that would be inconsistent with what I 17 understood from Father McDonough. And I think 18 there was an e-mail exchanged at some point in 19 time with Don Briel around this question about 20 Keating being in Rome. 21 it was in part the archbishop that raised that 22 question: 23 going to be monitored when he's in Rome?" 24 I in turn brought that question to Father 25 McDonough, who, then, conferred with Don Briel Because I -- I think "If he's going to Rome, how is he So 256 1 and somehow they took that information back to 2 the archbishop. 3 Q. When was that? 4 A. I don't know. I couldn't pin it down. Again, 5 there should be -- well, I don't know that 6 there would have been a memorandum about that, 7 but I do recall an e-mail exchange that I was 8 copied on and Don Briel's name was on that, 9 because I would not have communicated directly 10 11 with Mr. Briel. Q. Going back to priests who are accused as 12 offenders or credibly found to have been 13 offenders, receiving payments, are you aware 14 that Father Stevens had received payments 15 after having been -- I guess he was convicted 16 of child sexual abuse? 17 A. Well, I -- he was working as an IT guy in the 18 archdiocese, so I assumed he was getting 19 compensated somehow for that work. 20 was being compensated I have no information. 21 Q. But how he Do you have any knowledge of anybody, any 22 parishioners or the public ever having been 23 alerted to the fact that Stevens had a history 24 known to the archdiocese of having abused and 25 been convicted of child abuse? 257 1 A. Well, I mean, his conviction was a matter of 2 public record, and so I'm not sure what you're 3 asking. 4 Q. 5 Well, public record doesn't necessarily mean that people know. 6 A. Right. 7 Q. And the archdiocese knew. The question is, 8 did the archdiocese tell anybody, to your 9 knowledge? 10 A. Well, I -- I don't know. 11 Q. Father Kern has a record of receiving monthly 12 payments. What was your involvement with 13 Father Kern and did you know that he was 14 receiving such payments? 15 A. I do -- I didn't know that, no. 16 Q. Krautkremer, what do you know about him having 17 18 received payments from the archdiocese? A. I think I learned at some point in time that 19 there had been a mortgage payment or something 20 that had been made -- or a lump sum paid on a 21 mortgage for him or something of that nature, 22 but that's all I know. 23 Q. 24 25 And before MPR reported it, did you know that Kapoun had been -- A. No. 258 1 Q. -- receiving such payments -- 2 A. No. 3 Q. -- when you saw the MPR report? 4 5 Did you see the MPR report? A. Well, I was a bit surprised by that and I -- I 6 know that some have raised the question about 7 whether he really got those payments or 8 whether Scott Domeier misdirected that money 9 because Father Kapoun should have been on 10 whatever pension he earned, so I don't know -- 11 but I -- I don't know anything about those 12 payments other than what I saw in the news. 13 Q. 14 I mean, you were involved in the Kapoun case, so you know what his history was? 15 A. Yeah. 16 Q. Huh? 17 A. I won't forget the Kapoun case, nor will you 18 19 I'll not forget the Kapoun case. probably. Q. You're right about that. 20 What about Thurner? 21 A. I know nothing of any payments to Thurner. 22 Q. Okay. 23 A. I don't know anything about Brown. 24 Q. Okay. 25 And Brown, know anything about that? (Discussion out of the hearing of 259 1 the court reporter) 2 BY MR. ANDERSON: 3 Q. The archdiocese reported that they recently 4 removed Father Gallatin from ministry for, 5 quote, I think it was boundary violations, 6 unquote. 7 did or is accused to have done? 8 A. 9 What do you know about what Gallatin The only thing I ever learned about Father Gallatin was that at some point in time, he 10 had placed his hand on like the stomach of 11 some youth at some kind of outing, that's all 12 I ever heard. 13 Q. And do you know what the source of that 14 information is that the archdiocese relied 15 upon in making those statements to the public 16 for his reasons for his removal? 17 A. Well, I don't know what statements the 18 archdiocese has made. And that's the only 19 information I've ever learned about Father 20 Gallatin. 21 Q. So where did you get that information? 22 A. Oh, I -- I couldn't even tell you where I 23 would have ever heard that from. Could have 24 been from Jennifer Haselberger, but I don't 25 know where else. 260 1 Q. 2 Do you remember having discussions with Haselberger about Gallatin? 3 A. I don't. 4 Q. Do you remember having disagreements or 5 discussions with Haselberger about certain 6 priests who should not be in ministry or that 7 she had more grave concerns about than perhaps 8 others? 9 A. Well, certainly Father Shelley was among those 10 that she didn't think should be in -- in 11 ministry. 12 anybody else. 13 her mentioning something about Gallatin, but I 14 don't remember in what context that was in. 15 Q. I'm not sure that I remember And I don't -- I -- I remember What about Wehmann, what do you know about the 16 reason given for his removal and/or the 17 history behind him? 18 A. That I -- the -- the only things -- I think I 19 learned that because it had been referred to 20 the clergy review board, if I recall 21 correctly. 22 police, maybe up in Coon Rapids or something, 23 and there was something else, but at this 24 point in time I don't remember what that was. 25 Q. And there had been a report to the How many child sexual abuse allegations -- 261 1 when was it to go before the board, do you 2 remember? 3 A. I don't remember. It would have been within 4 the first few years, I think, that I was at 5 the archdiocese. 6 brought him there hadn't occurred, I think, 7 while I was in the Chancery, so I wasn't there 8 to know, you know, the history kinda stuff. 9 But when -- I don't know what -- they were And the things that had 10 doing something with him and they wanted it to 11 go to the clergy review board, if I recall 12 correctly, I'm pretty certain that he went to 13 the clergy review board. 14 (Discussion out of the hearing of 15 the court reporter) 16 BY MR. ANDERSON: 17 Q. 18 19 What else, if anything, did you learn about Wehmann? A. I remember a description of something, he was 20 at somebody's house and there was a question 21 about a young girl and butterfly kisses, and 22 that's about all I remember. 23 to do with butterfly kisses. It was something 24 Q. How did that come to you? 25 A. I think from a review of his file in 262 1 connection with the referral to the clergy 2 review board. 3 Q. How many matters, to your knowledge, were 4 given to the clergy review board for their 5 consideration and recommendation that 6 pertained to accusations of childhood sexual 7 abuse? 8 A. 9 10 Where they were asked to determine the credibility of the allegations? Q. Well, I think their -- I mean, isn't their 11 role basically to give advice to the 12 archbishop? 13 A. 14 15 Relative to their view of the priest's fitness for ministry, yes. Q. So how many matters do you believe or were you 16 involved in where it was submitted to the 17 clergy review board? 18 A. 19 20 Related to that question of fitness for ministry? Q. 21 And safety pertaining to sexual abuse of minors. 22 A. Well -- 23 Q. I'm not talking about alcoholism or -- 24 A. Yeah, yeah. 25 Q. -- other issues. I'm talking about abuse. 263 1 A. Okay. Let me see if I can characterize those. 2 In terms of the question of credibility of 3 allegations, the only one I'm aware of is 4 Keating. 5 Q. Okay. 6 A. All the rest of them, it was more related to 7 the question of fitness for ministry, but most 8 of those was where either there hadn't been 9 sexual contact or, if there had been sexual 10 contact, it was with an adult that may or may 11 not have involved some degree of pastoral 12 relationship. 13 Q. Were there any submitted to the review board 14 pertaining to minors, other than Keating on 15 the question of fitness? 16 A. Well, the -- Wehmann, in terms of the concerns 17 that were raised about Wehmann, even though 18 there was no allegation that he had sexual 19 contact with them, they -- that -- those 20 instances or examples did involve minors. 21 Q. 22 23 And Wehmann was found to be fit for ministry and continued in ministry? A. They made a recommendation and I think he 24 continued in ministry. 25 that recommendation was. I don't remember what 264 1 Q. 2 Did the Gallatin thing go before the review board? 3 A. Not while I was there. 4 Q. Any other matters that you can recall that 5 went before the review board at any time 6 pertaining to sexual abuse of minors under 7 Flynn or Nienstedt? 8 A. 9 the moment. 10 11 I don't think so. Not that I'm recalling at I think all the rest of 'em were adult cases that -Q. When you refer to Wehmann and the butterfly 12 kiss that you had some memory of, what did 13 that -- what was that and how did that -- what 14 did that -- what was a description of that? 15 A. I had -- if I recall correctly, he was like 16 the guest in the house of these parents and 17 there was some kids there, and there might 18 have been other people, adults, certainly the 19 parents were there as well. 20 he was in a room with the kids and he had 21 asked a girl if she knew what a butterfly kiss 22 and she -- was and she said no, and that he 23 apparently had demonstrated a butterfly kiss, 24 which is where you flick your eyelash on 25 someone's check, I guess, is what I recall. And that somehow 265 1 MR. ANDERSON: I'm getting pretty 2 close to done here, but let's take a break 3 right now, a short one, and then we'll finish 4 up. 5 THE WITNESS: 6 MR. KINSELLA: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Okay. Off the video record.