Professional Documents
Culture Documents
Order and Memorandum August 2023
Order and Memorandum August 2023
1
The court will use the term “Attorney General” and “Office of the Attorney General” somewhat interchangeably
throughout. The Attorney General is the person who is seeking the public release of previously redacted
information. Individual attorneys working for the Office of the Attorney General conducted the investigation,
wrote the Report, and appeared on behalf of the Attorney General in the proceedings before this court. The
current Attorney General was not in office when the Report was written and when the initial request to disclose
was made.
In order to prevent disclosure before engaging in the Rule 4-642 review
process, the court initially placed all proceedings under seal and required all
pleadings in this matter to be filed directly with the grand jury judge. After a
preliminary hearing wherein the Office of the Attorney General, the
Archdiocese, various victims of abuse, and lawyers representing certain
Archdiocesan officials and other interested parties had the opportunity to be
heard, the court authorized the release of a document which redacted from
public view the identities of living individuals discovered primarily from the
subpoenaed documents who were accused of abuse and not previously publicly
identified by the Archdiocese itself, or those who were in some fashion
presented as having assisted in enabling or hiding such abuse. See Order and
Memorandum of Feb. 24, 2023.
Pursuant to the February order, the OAG, after working with the
Archdiocese, presented a set of proposed redactions to the court. The court
added its own redactions, and ultimately authorized the release of a redacted
document on April 4, 2023. The identities of 46 individuals were masked in
that document.
2
What is now before the court is whether the Attorney General can show
a sufficient “particularized need” to name any of the individuals whose
identities are currently redacted in the Report. Some of the interested parties
have raised a preliminary question, however: Does the Attorney General have
the authority to release a report accusing people of misconduct after a criminal
investigation that does not result in any criminal charges?2
Both the unique nature of this investigation and Report, and the need to
simultaneously take both a narrow and broad view of the questions before the
court, present themselves in a question raised by some of the redacted
individuals: whether the Office of the Attorney General has any authority to
issue a report at all following a criminal investigation that does not result in
any indictment.
Counsel for some of the redacted individuals point out, quite accurately,
that under ordinary circumstances a prosecutor is not entitled to make public
comment about individuals investigated for crimes but not indicted. Md. Rule
of Professional Conduct 3.8; ABA Criminal Justice Standard 3-1.10. If the
Office of the Attorney General investigated an individual on suspicion of child
sexual abuse and determined that there was insufficient evidence to seek an
indictment, it ordinarily would be improper for the Office to nonetheless issue
a report accusing the target of child sexual abuse.
2
One individual was criminally charged as a result of the investigation; the person was not named in the Report,
and ultimately was acquitted of all charges after a bench trial in the Circuit Court for Baltimore County.
3
enforcement purpose, refrain from making extrajudicial comments
that have a substantial likelihood of heightening public
condemnation of the accused and exercise reasonable care to
prevent an employee or other person under the control of the
prosecutor in a criminal case from making an extrajudicial
statement that the prosecutor would be prohibited from making
under Rule 19-303.6 (3.6) or this Rule.
In addition, Rule 3.6 prohibits attorneys from making statements “that will
have a substantial likelihood of materially prejudicing an adjudicative
proceeding in the matter.”
Here, there is no “accused” and the extent to which the Attorney General
is acting as a “prosecutor” is somewhat hazy. For example, the Report includes
a chapter on Father Robert Duerr, who died in 1982; the Report discloses
allegations of abuse which occurred in 1952 and 1953, to an unknown victim.
(Report at Pg. 115). The allegation was reported by the Archdiocese to the
appropriate authorities in 2002, and the Archdiocese listed Duerr as a credibly
accused abuser in 2019. Plainly the Office of the Attorney General had no
intention of pursuing criminal charges against a dead man for conduct
occurring 70 years ago. And aside from the litigation over the release of the
Report, there is no “adjudicative proceeding” arising from the investigation
(with the sole exception noted in footnote 2, above).
Nor was the primary target of the investigation any individual. The
investigation was into the conduct of the Archdiocese over a period of decades.
It would have been obvious from the start that few, if any, indictments would
result from this investigation, given the passage of time and the various
changes to the relevant criminal statutes over the years. While a single
indictment did arise from the investigation, the target of the Attorney
General’s investigation was the Archdiocese itself, not any specific individual.
4
In the introduction to the Report, the authors state: “Unfortunately,
most of the abusers and those who concealed their wrongdoing are dead and
no longer subject to prosecution. While stories of this abuse have been
documented by victims, advocacy groups, investigative journalists, and others,
we hope to make public for the first time the enormous scope and scale of abuse
and concealment perpetrated by the Archdiocese of Baltimore. While it may be
too late for the victims to see criminal justice served, we hope that exposing
the Archdiocese’s transgressions to the fullest extent possible will bring some
measure of accountability.” This Report does seem to “inform the public of the
nature and extent” of the Attorney General’s actions and serve the purpose of
explaining both what happened in the Archdiocese, and why no additional
criminal charges have been filed.
Counsel for 15 of the redacted parties notes, correctly, that this is not a
grand jury report. (Doc. 77 at 13). It is unclear whether a grand jury would
have had the authority to issue such a report. Absent some specific statutory
authority to the contrary, Maryland grand juries have long been assumed to
5
have only the power to indict, not report. See In re Rep. of Grand Jury of
Baltimore City, 152 Md. App. 616 (1927) (abolishing common-law distinction
between presentment and indictment).3
It does not follow, however, that the Office of the Attorney General does
not have the authority to issue such a report, even if some of the material was
developed from grand jury subpoenas. Article V, Section 3 of the Maryland
Constitution states that the Attorney General shall
3
More recently, the Appellate Court of Maryland suggested that grand juries may indeed have the power to do
something other than indict. Holloman v. Mosby, 253 Md. App. 1 (2021), cert. denied, 477 Md. 391 (2022).
Examining what it defined as the “common-law” right of citizens to present material directly to a grand jury if the
prosecutor declined to prosecute and a Baltimore City judge refused to order an investigation, the court held that
such material could be presented at the request of any citizen after exhausting other remedies. Although in the
19th century the Court of Appeals once held that a grand jury can theoretically issue an indictment without a
presentation from a prosecutor, Blaney v. State, 74 Md. 153 (1891), only duly appointed prosecutors can bring a
criminal case to trial. Murphy v. Yates, 276 Md. 475, 489–90 (1975) (legislation cannot eliminate prosecutor’s
Constitutional discretion over prosecutions); Lopez-Sanchez v. State, 388 Md. 214, 224 (2005) (“Public prosecution
[is] the sole method of enforcing this State’s criminal law”). It may be the case that the Holloman Court envisioned
some sort of public report or statement from the grand jury, as might be the case if the grand jury had been
directed to investigate an issue by statute or by a Baltimore City judge under Section 8-417 of the Courts article.
See In re Grand Jury January, 1969, 315 F. Supp. 662 (1970) (indictment issued by grand jury without agreement of
prosecutor constituted a “presentment” that could be made public.)
6
that might be discovered or otherwise come to your attention during your
handling of any such matter.” The letter further authorized the Office of the
Attorney General “to use all necessary subpoena powers, to present to an
appropriate grand jury any evidence and testimony considered necessary to
carry out this authorization and directive, and to act with the full powers,
rights and privileges possessed by a State’s Attorney.” Thus, under the
direction of the Governor, and pursuant to his Constitutional authority, the
Attorney General began its investigation.
7
other statute or rule, nothing prohibits the Attorney General from releasing
the results to the public. The Attorney General, for example, has the authority
to issue press releases warning consumers of unfair or unjust behavior under
the Consumer Protection Act, even when charges against the alleged offender
are still pending. Consumer Prot. Div. Off. of Atty. Gen. v. Consumer Pub. Co.,
304 Md. 731, 764 (1985). This is so even when the disclosure causes
reputational damage to parties who have not been found guilty of anything.
Id., citing F.T.C. v. Cinderella Career & Finishing Sch., Inc., 404 F.2d 1308,
1316 (D.C. Cir. 1968). The authority of the Attorney General in Consumer Pub.
Co. was granted by the Legislature as a part of the Consumer Protection Act.
Here, the court finds, the authority was granted by the Governor. This is a
distinction which makes no difference under Art. V of the Maryland
Constitution. The court finds that the Attorney General had the legal and
constitutional authority to undertake this investigation and the legal and
constitutional authority to issue a report on the results of its investigation
under the circumstances presented here.
In discussing disclosure, there are some general points and caveats that
the court must underscore.
First, the Report produced by the Office of the Attorney General is not
an indictment. It is not the finding of any judicial officer. There has been no
trial, no cross-examination of witnesses, no complete and unbiased
presentation of evidence and arguments by all interested parties. This court is
neither endorsing nor refuting the specifics contained within the Report. It is
not the court’s report; it is the Report of the Attorney General.
8
Second, the fact that an individual’s name was redacted in the interim
Report is in no way meant to serve as a judicial determination that this person
engaged in any form of misconduct, let alone any criminal act. The OAG and
the court applied the standards of redaction broadly and liberally, choosing to
err on the side of nondisclosure whenever there was any question as to whether
an individual in the Report might be subject to criticism, fairly or not, for his
or her conduct as described in the Report. Some of the individuals whose names
were redacted were simply doing their jobs, as best they could, under trying
circumstances.
9
cases than any single Report properly can describe. And while the anger and
pain of the victims and their families is entirely justified, an undifferentiated
fury aimed at the Church and all of the people in the Report is not. Some of the
people in the Report were simply making difficult decisions under difficult
circumstances. None of us have led such blameless lives as to be beyond all
criticism. But guilt-by-association is never fair.
10
“Misc. 1064”). Thus, because the Report includes documents obtained by grand
jury subpoena, some information within the Report is presumptively secret.
The proper exercise of this court’s discretionary authority to determine what,
if any, information is disclosed requires weighing a number of factors.
On its most basic level, disclosure is governed by Md. Rule 4-642, but
that describes only the process for seeking disclosure, not what standards the
court should apply when ruling on the request. The Supreme Court of
Maryland has noted that Fed. Rule Crim. Pro. 6(e) and Maryland Rule 4-642
share similar language, but with one key distinction. “As a practical matter
the two rules are apart in only one respect. The federal rule requires that
disclosure be “preliminarily or in connection with a judicial proceeding.” The
Maryland Rule does not have this requirement.” In re Crim. Investigation No.
437 in Cir. Ct. for Baltimore City, 316 Md. 66, 81 (1989) (hereinafter “No. 437”).
Thus, while the authority to authorize disclosure is broader in Maryland,
Maryland courts have frequently turned to the decisions of federal courts when
addressing questions of grand jury secrecy.
11
defendants in suppression hearings, Martinez v. State, 309 Md. 124 (1987), and
also to people searching for evidence in support of post-conviction claims.
Causion v. State, 209 Md. App. 391 (1997). It also has upheld the right to
review grand juror materials for a group of citizens searching for evidence in
support of civil claims against the police department. In re Crim. Investigation
No. 51,843 in Cir. Ct. for Prince George's Cnty., 119 Md. App. 112, 126 (1998)
(emphasizing that the weighing of factors ultimately was reserved to the
discretion of the hearing judge.) (Hereinafter “No. 51,843.”)
As noted, Maryland’s rule – unlike the federal rule – does not require
that the request for documents be a part of another judicial proceeding. Citing
No. 51,843 and No. 437 as examples, the Appellate Court of Maryland has
rejected the suggestion that any such limitation applies in Maryland. “[T]here
is nothing in Rule 4–642(d) that suggests that a grand jury’s records cannot be
disclosed for purposes not directly related to criminal proceedings stemming
from indictments issued by the grand jury. In fact, the law is to the contrary.”
Causion, 209 Md. App. at 399–400.
The No. 437 opinion quoted with approval from United States v. Sells
Engineering, 463 U.S. at 418 (1983): “ ‘The Douglas Oil standard is a highly
flexible one, adaptable to different circumstances and sensitive to the fact that
the requirements of secrecy are greater in some situations than in others. . . .
The standard itself accommodates any relevant considerations that weigh for
or against disclosure in a given case.’ ” 316 Md. at 87.
In No. 437, the Supreme Court set forth a roadmap for judges to follow
when determining whether a particularized need has been shown.
12
erred in ordering disclosure and authorizing the letter of
transmittal with the following givens:
1) Secrecy is inherent in the grand jury system.
2) The general rule of secrecy may be breached by an order
of court pursuant to Md. Rule 4–642(c).
3) Disclosure of grand jury proceedings vel non is within the
sound discretion of the trial judge.
The trial judge is to be guided by the following principles in the
exercise of his discretion:
a) The party seeking disclosure by an order of court must
show a particularized need for breaching the general rule of
secrecy.
b) The standard for the particularized need requirement is:
i) the material sought to be disclosed is needed to avoid
a possible injustice; and
ii) the need for disclosure is greater than the need for
continued secrecy; and
iii) the request to disclose covers only materials so
needed.
The standard for the particularized need requirement involves a
balancing. The standard is a criterion of degree; it accommodates
any relevant considerations that weigh for or against disclosure in
a given case. Generally, among the considerations which may be
placed on the scale are
1) the need to protect the unindicted individual from
disclosure;
2) the grand jury has concluded its operations;
3) the particularized need requirement applies to civil
governmental agencies as well as to private parties;
4) the materials sought for disclosure are rationally related
to the civil proceedings contemplated;
5) the materials sought may be available through ordinary
discovery or other routine avenues of investigation;
13
6) disclosure will save time and expense;
7) no indictments were returned as a result of the grand
jury’s investigation.
None of these considerations, in itself, is usually sufficient to show
that there is or is not a particularized need for disclosure. But each
consideration, balanced with other considerations, may weigh for
or against disclosure. The weight afforded by the consideration
depends upon the particular circumstances. The bottom line is that
disclosure is appropriate only in those cases where the need for it
outweighs the public interest in secrecy.
No. 437, 316 Md. at 100–01 (1989)
Quoting No. 437 and No. 51,843, the Causion Court summarized the
applicable standard as follows:
Because the rule does not offer or suggest a standard for the trial
court to follow when deciding to issue a disclosure order, the Court
of Appeals has filled this void by holding that when a court order
for disclosure is requested, there must be a strong showing of a
‘particularized need’ before disclosure is permitted. More
specifically, to obtain court-ordered disclosure of grand jury
material, the moving party has the burden to prove the following:
1) the material they seek is needed to avoid a possible injustice;
and
2) the need for disclosure is greater than the need for continued
secrecy; and
3) their request is structured to cover only material so needed.
209 Md. App. at 403 (mut. mut.)
The OAG and the affected parties (at least those affected parties who
responded) make very specific arguments unique to each individual whose
name remains redacted. The court has considered all of these arguments. Both
the OAG and the responding parties also make some general arguments that
14
apply with greater or lesser force to all of the instances of redaction, which the
court will attempt to summarize below.
The OAG argues that the “particularized need” in this case is not a
particularized need to name any one individual, but a particularized need to
release a full and complete Report that is “transparent” to the public and the
victims. Disclosure of the entire report is necessary to protect “children and the
entire community,” and the public interest in healing, accountability, and
transparency provide a basis for disclosure. (Doc. 1 at 11-12). “Publicly airing
the transgressions of the Church is critical to holding people and institutions
accountable and improving the way sexual abuse allegations are handled going
forward.” (Doc. 1 at 11). The OAG notes that the Archdiocese, through its
churches, schools, hospitals, and other civic endeavors, plays a role in the lives
of countless Marylanders, Catholic and non-Catholic alike. Disclosure, the
OAG argues, “is important to hold the Church accountable, validate survivors,
and improve the response to sexual abuse allegations going forward. Keeping
this information secret hampers those goals. Perpetuating the secrecy that
historically surrounded sacerdotal sex abuse would create an injustice both for
survivors of abuse and children currently in the Church.” (Doc. 1 at 23).
“Transparency not only holds perpetrators and their accomplices accountable,
it also provides validation and support for survivors and increases public safety
going forward.” (Doc. 1 at 25-26.) The OAG points out that there is no longer
any ongoing grand jury activity, that some (but not all) of the individuals whose
names were redacted have nonetheless been identified in the news media, and
that “special circumstances” should apply when applied to a disclosure
addressing primarily historical occurrences in an area of great public concern.
Moreover, the OAG argues, the reasons for secrecy are either non-existent or
greatly attenuated; the grand jury is no longer considering the case, the
15
information at issue is contained in third-party documents, and as there are
no further indictments expected, there is no risk of either witnesses being
intimidated or suspects fleeing the jurisdiction. Of those individuals not
identified in the media, most played innocuous or ephemeral roles and should
have little fear of public opprobrium or unfair criticism if disclosed.
It is claimed, for example, that substituting a specific name for the words
“Official A” in the redacted Report would not advance any of the Attorney
General’s stated interests in transparency, healing, or justice, because the
public already has access to the story presented by the Report. Adding Official
A’s name would be, in a sense, gratuitous. The same could be said of any other
individual whose name is currently not included in the report.
The respondents also argue, in various ways, that they are unfairly
maligned by the Report, either because they deny the truth of the accusations
the Report recounts, or because they contend that the Report itself
misrepresents their actual roles. These arguments will be addressed in more
detail below, but as a general matter, the court is in the role of determining
16
whether the Attorney General has shown a particularized need to publicize
this information. The court is not in the role of assessing the factual,
contextual, or tonal fairness of the contents of the Report. Certainly the
Attorney General will have difficulty establishing a particularized need to
publish an abject falsehood against an unindicted individual. Toward that end,
the court has considered the specific allegations that the claims are false and/or
presented in an unflattering light. The Report includes uncorroborated claims,
a fact that is apparent from the Report itself. Other complaints about the
contents of the Report relate more to the omission of certain mitigating details
or context than the assertion of direct falsehoods. The parties argue, therefore,
that the Attorney General can show no “particularized need” to disclose
information that is uncorroborated or incomplete.
This court already determined, in its February 24, 2023 Order, that the
interest of disclosure, transparency, and public justice outweighed the
relatively scant interest in secrecy when considering information relating to
people who were either deceased or whose names had already been publicly
released by the Archdiocese. While many of the same interests in disclosure
remain with regard to the remaining information, the arguments in favor of
continued secrecy are stronger when applied to information regarding people
who are alive and who have not previously been identified.
17
It is the case that some of the individuals whose identities were redacted
are, in a strictly legal sense, not guilty of anything other than doing their jobs.
Counsel for some of the interested parties pointed out, for example, that prior
to 1993, it was unclear whether mandatory reporting requirements for child
abuse applied in cases where the victim was no longer a child. Some of the
accusations that Archdiocese officials were called to address were made
anonymously and were essentially uncorroborated, or were made under
circumstances where at least arguably the accusation was shielded by clerical
privilege. The drafters of the Report, moreover, made editorial decisions about
which information to include and which to omit, toward the goal of presenting
a particular narrative about abuse within the Archdiocese. These decisions
necessarily shape the message being communicated to the public.
The court has considered all of these arguments. The court further has
considered all of the various relevant factors as listed by the Court of Appeals
in No. 437 and other grand jury secrecy cases, and has considered the relevant
federal caselaw as well. While the court will list several factors specifically, the
omission of any particular point of consideration should not be construed to
mean the court has ignored it entirely; rather, the court has, consistent with
the guidance of the appellate courts, weighed different factors differently
consistent with the specific circumstances of this case.
18
The Report makes it clear that for nearly a century, the Archdiocese of
Baltimore has struggled with the abuse and sexual exploitation of children and
young adult parishioners. This abuse has largely been at the hands of religious
leaders. In far too many cases, the abuse was addressed not with prompt and
decisive action to protect the alleged victim, but rather by delay, secrecy, and
the protection of the alleged abuser. It is tempting to ascribe this to “the
Archdiocese,” without calling attention to the choices and actions of dozens of
individuals over the decades who, collectively, constitute the Archdiocese.
19
into public view. The interest is not in putting anyone in jail, at this point; the
events at issue occurred so long ago that this does not seem plausible. But there
is an interest in exposing what happened, to help ensure that it does not
happen again. There is an interest in exposing how it happened, so that the
public in general and public policy makers in particular can decide what, if
any, actions need to be taken to prevent similar occurrences in the Archdiocese
and other institutions accustomed to a culture of respect, deference, hierarchy,
and the lack of accountability that is often a part of such institutions.
Among the stories of abuse disclosed in the Report, the case of Father
Gerald Tragesser highlights the problems of secrecy in protecting abusers.
No trial was ever held. The Archdiocese wrote to the chief judge of the
Circuit Court for Baltimore County, promising that Father Tragesser would be
sent to a program in New Mexico for the “correction and treatment of priests”
and would never return to Maryland. (Report at 410.) The judge, the Hon. John
Gontrum, agreed, and the matter never proceeded to any public hearing.4
4
The elected State’s Attorney at the time was Frank Newell III. The court includes his name here in the interest of
transparency and accountability. It seems difficult to imagine that the matter was resolved the way it was resolved
without the consent and cooperation of the State’s Attorney.
20
whom is a non-Catholic” – reported the matter to “Civil Authorities.” However,
Keogh wrote, “through the existence of some excellent Catholic laymen the
trial was conducted in a private way in the chambers of the Chief Judge of the
Circuit Court for Baltimore County.”
Keogh also complained that “[t]he parents of the girl in question were
violently pressing charges and demanding an open public trial.” and that “in
her endeavor to see that the Priest was punished, the mother of the girl even
went so far as to contact one of the newspapers and reveal the entire story to
a reporter. . . . Only prolonged and extremely careful negotiations and the
happy influence of a highly placed newspaper man prevented the entire
scandal from becoming public knowledge,” Keogh wrote.
One would hope that in 2023, such a case would be handled differently.
Nonetheless, it is episodes such as this that the court must consider when
balancing the need for secrecy over these proceedings with the public interest
in transparency. See Md. Rule 16-904 (“Judicial records are presumed to be
open to the public for inspection.”) The hundreds of victims documented in the
Report were abused due, at least in part, to a lack of transparency that allowed
their abusers to find other victims. That same lack of transparency then
compounded the injury to the victims by reinforcing the notion that the victims
themselves were somehow to blame or had something to be ashamed of.
Another case revealed in the Report involved the serial abuse of children
across the country by Father Laurence Brett. According to the Report, from
1962 to 1964, Brett raped multiple children in Connecticut. He was sent to
treatment in New Mexico, and told to “feign hepatitis” if asked about the
reasons for his departure. He would later be accused of raping children in
Santa Fe. After his treatment in New Mexico, Father Brett went to California,
21
where he was again accused of raping children, this time in Sacramento. He
moved to Pasadena, Maryland, and was granted priestly faculties by the
Archdiocese. Eventually he was assigned as the chaplain at Calvert Hall High
School – where he was again accused of raping at least four children between
1969 and 1973. He was then given a series of other clerical assignments,
eventually returning to Connecticut. In the early 1990s, additional victims of
Brett’s abuse started coming forward, recounting abuse at Brett’s hands nearly
everywhere Brett had ever lived.
22
proceedings wherein anonymous religious and legal authorities ruled on
critical issues behind closed doors. It was necessary and in the interest of
justice for these representatives of the broader community of victims to be
present at the proceedings so that they could for once be present when the fates
of abusers, their victims, and their enablers were being discussed.
For similar reasons, the court finds a particularized need for the
disclosure requested by the Attorney General in this case. While the court is
constrained by Rule 4-642 and the various factors that must be considered
when determining whether public disclosure is allowable in each individual
case, the court nonetheless has been granted the discretion to weigh those
factors and to make the requisite factual determinations. The court finds that
the requirement for showing particularized need has been met.
In reaching this decision, the court has also taken into account other
factors, on a case-by-case basis. These include:
5
When it attempted to serve notice on the 46 individuals whose names were redacted, the Office of the Attorney
General discovered that at least two of those people were deceased and therefore could have been identified
under the court’s February Order.
23
name still redacted in the document remains unindicted, and likely never will
be indicted for reasons explained in the Report itself. The court has given
serious consideration to this fact. These are individuals whose names would
not ordinarily be publicized by the filing of an indictment, and who will not
have the opportunity to compel the State to prove their guilt beyond a
reasonable doubt at a public trial. And in the cases of many individuals not
accused of abuse themselves, their conduct did not violate any criminal law
such that an indictment would ever have been proper.
At the same time, as mentioned above, the very nature of the behavior
detailed in the Report was designed to prevent any timely public disclosure of
conduct, policies, and individual decisions that led to recurring patterns of
child sexual abuse throughout the Archdiocese. At least some of the individuals
whose names remain unredacted undertook efforts to ensure that they could
never be indicted, by working to hide their conduct from any public scrutiny.
24
3. The materials sought for disclosure are rationally related to the civil
proceedings contemplated.
The Attorney General’s request is not made in the context of
contemplated civil proceedings. This factor applies more directly when, for
example, the Attorney General has decided to use civil rather than criminal
enforcement of a consumer protection or antitrust law. However, it is also the
case that the legislature has recently passed legislation that may open the door
to civil suits from sexual abuse victims described in the Report. An unredacted
version of the Report may steer potential civil litigants toward witnesses in
their cases.
This is another factor that appears to apply more heavily in cases where
the requested release of information is for the benefit of a government agency
engaged in some sort of civil enforcement action. But as noted above, the
release of an unredacted report would be of some assistance to potential civil
25
litigants in general, as it would help identify potential witnesses and narrow
discovery requests. For the same reason, release could even be of some minor
benefit to the Archdiocese, as a presumptive defendant in these future actions.
To the extent that future civil litigation is likely, this is another factor that
weighs lightly in favor of the petitioner.
7. Additional factors.
26
circumstances similar to the ones presented here, usually in the context of
requests to disclose information of historical interest from grand juries whose
worked had concluded years or even decades in the past. The fact that some
federal circuits have felt compelled to craft “inherent authority” and/or “special
circumstances” jurisprudence in such cases is strong indication that the sound
interpretation of the disclosure rule requires flexibility to circumstances. See
In re Petition for Order Directing Release of Records, 27 F.4th 84 (2022)
(assuming, but not deciding, that the courts have “inherent authority” to
release grand jury materials outside the confines of Federal Rule 6(e); see also
In re Petition of Craig for Order Directing Release of Grand Jury Minutes, 131
F.3d 99 (2d Cir. 1997) (no abuse of discretion in refusing to release transcripts
from 1948 grand jury proceeding under “special circumstances”); Carlson v.
United States, 837 F.3d 753 (7th Cir. 2016) (no abuse of discretion in releasing
transcript of 1942 grand jury proceedings; historical value was one valid
“special circumstance.”). There is a federal circuit split on this issue, and
recently, the Supreme Court of the United States declined an opportunity to
address the question. Pitch, et al., v. United States of America, 953 F.3d 1226
(11th Cir. 2020), cert. denied, 141 S. Ct. 624 (2020). See also Jose M. Espinosa,
An Essential Preliminary: The Grand Jury, Its Cloak of Secrecy, and the
Misconceived Inherent Authority to Release Grand Jury Materials, 77 U. MIA
L. Rev. 920 (2023) (arguing against “inherent authority” but for an “historical
records” amendment to Rule 6(e)). When a number of federal circuits have gone
beyond the federal rule to authorize disclosure in certain cases, and when the
Maryland rule does not contain the very limitation that the federal courts are
struggling to address with this doctrine, the extent to which this is an
historical document or otherwise subject to “special circumstances” is a
relevant consideration.
27
(b) The nature of the documents.
28
To be sure, the Supreme Court of Maryland has declared that “records
obtained by grand jury subpoena are subject to Maryland Rule 4-642, which
pertains to grand jury secrecy and provides extensive protection against
unauthorized disclosure.” Misc. 1064, 478 Md. at 585–86. Nonetheless, at least
in the federal system, many courts have applied an “effect” test described above
for determining how to assess the interest in secrecy in grand jury documents.
“In the sheer number of opinions advocating it, the “effect” test dominates in
the federal courts.” Nervi, supra, 57 U. Chi. L. Rev. 221 at 233.
29
role in internal operations of the Archdiocese, worried that “the curious” will
track her down and find her if her name is released, and thinks of herself as
“collateral damage” of the Archdiocese’s behavior.
This weighs against release. Outside of the ten accused abusers whose
names were not previously listed (one of whom has since been added to the
“credibly accused” list), most of the information disclosed about the other
redacted individuals does not rise to the level of criminal conduct – but some
of it certainly will cause some public opprobrium to be leveled at some of the
affected individuals.
Another factor is that some, but not all, of the individuals whose names
were redacted have been tentatively identified in the media. Grand jury
material can lose its presumptive secrecy once publicly disclosed, regardless of
the court’s actions. “[W]hen once-secret grand jury material becomes
‘sufficiently widely known,’ it may ‘lose its character as Rule 6(e) material.’” In
re Grand Jury Subpoena, Judith Miller, 493 F.3d 152, 154 (D.C. Cir. 2007),
quoting In re Oliver North, 16 F.3d 1234, 1245. (D.C. Cir. 1994).
Between the April release of the redacted report and the July hearings,
various news outlets issued stories purporting to identify 15 of the redacted
individuals. With a few isolated exceptions – wherein the parties themselves
confirmed their identities to the media – there was no acknowledgment from
the various participants in the proceeding as to whether the media reports
were accurate or not. Nonetheless, for those individuals who have been
correctly identified in media reports, the interest in continued secrecy is
greatly reduced. That does not apply, however, to those who have not yet been
identified.
30
E. Holdings:
The court is satisfied that the Attorney General has made a strong
preliminary showing of particularized need for the disclosure of the names in
the Report. The interests of accountability, public justice, public policy, and
transparency are all forwarded by disclosure of this information. Addressing
the specific arguments responsive arguments presented on behalf of the
individuals whose names were redacted from the interim Report, the court has
reached the following conclusion.
While the court has considered each of their cases individually, the
arguments for and against the unmasking of their identities are similar. The
Office of the Attorney General has taken the position that all of these
disclosures are necessary to further the specific interests in having a full and
fair accounting of the legacy of abuse and cover-up within the Archdiocese.
Noting that “the secrecy rule is not designed for the protection of witnesses,
but for that of grand jurors and in furtherance of public justice,” Doc. 50. at 13,
quoting No. 437, 316 Md. at 77, the OAG argues that with regard to Officials
A-E, “[t]he secrecy of the conduct described in the Report, and the efforts
undertaken over decades to keep it that way, form a substantial part of the
very injustice that the Attorney General has sought to combat by publishing
the Report.” Doc. 50 at 12-13. “The story of the Archdiocese’s action and
inaction in response to child sexual abuse during the relevant time period is a
31
story of the actions and failures to act of these men. . . There is a strong public
interest in the accountability entailed by a release of the Report with their
names unredacted.” Doc. 51 at 2-3. The OAG further notes that the identities
of at least some of these men have been disclosed in the press since the
publication of the redacted document.
32
names in the Report, especially when the nature of their involvement is open
to contention.
The fact that the officials dispute the Attorney General’s interpretation
of the evidence, and can point to instances where they believe material was
misconstrued or taken out of context, underscores that this issue is far more
complex than a simplistic “abusers vs. victims” narrative can fairly encompass.
But ultimately this is an argument for more transparency, not less. To the
extent that these officials contend that their behavior was blameless, or at
least justified under the circumstances, they are free to press that claim in a
public manner. To continue to hide their identities does not advance that
interest in public discourse; just the opposite. It allows the most negative
possible inferences to be drawn, while continuing to shroud this troubling
history in secrecy.
The report identified ten individuals as accused abusers who were not
previously named in the Archdiocese’s list of credibly accused abusers. While
the list of identified abusers is alphabetical in the Report, the ten previously
33
undisclosed accused abusers are listed at the end of the Report, in part to help
protect their identities; they are listed in the redacted Report at alleged
abusers #147 through #156. (One, #155, has since been added to that list and
is therefore now publicly identified from sources other than the subpoenaed
documents. The other nine have been tentatively identified in the press.)
Individual #147.
Accused abuser #147 contends that the accusations against him are false
and defamatory. He further argues that they are based on “hearsay” and not
“admissible evidence.” He contends that to the extent that the Report alleges
misconduct and cover-up on the part of the Archdiocese, there is no public
interest in identifying him, since he did not engage in the cover-up of the
allegations against him. He further notes that the accusations against him
were referred to Baltimore City prosecutors in 1987 (some 10 to 12 years after
the alleged abuse), and there was no official action taken against him. He
asserts a Constitutional liberty interest to his reputation and avers that it
would therefore be unconstitutional for the State to release a report accusing
him of child abuse.
In rebuttal, the OAG argues that Individual #147 has been tentatively
identified in the press already; that his constitutional claim has no merit
(citing Paul v. Davis, 424 U.S. 693 (1976)); and that most of the information in
the Report concerning this individual did not come about as the result of the
34
grand jury subpoena, but rather as a result of interviews with the alleged
victim(s) in the case.
This person’s name may be included in the public version of the Report.
Individual #148.
The person listed as accused abuser #148 has been shown to be deceased.
For the reasons set forth in the court’s earlier order, his name may be included
in the public version of the Report.
Individual #149
35
name may be included in the public version of the Report for the reasons set
forth in the court’s February order.
Individual #150
Accused abuser #150 responded to the notice and retained counsel, who
reviewed the Report entries specific to him. According to the Report, he was (in
2009) the subject of a single complaint of misconduct, alleged to have occurred
in 1976. This individual did not respond to the OAG’s renewed motion to
publish his name, and withdrew his request to participate in the hearings. The
court is satisfied that the Attorney General has set forth a particularized need
to reveal the information in the Report concerning this person’s identity. His
name may be included in the public version of the Report.
Individual #151
Accused abuser #151 was notified by the Office of the Attorney General
but failed to respond. He has been tentatively identified in the press by name.
The Office of the Attorney General has set forth a particularized need to
disclose his name in its report. The public policy and public justice goals of
disclosure and transparency favor disclosure. While there are factors weighing
against disclosure, the court has determined that the need for disclosure
overcomes those factors and will authorized the identification of this individual
by name in the public version of the Report.
Individual #152
The accused abuser listed as #152 has opposed the release of his name,
arguing that the accusation is based on a single, uncorroborated allegation.
The OAG argues, in rebuttal, that there are two accusations, that the
Archdiocese has suspended #152’s faculties pending further investigation, and
36
that #152 has been tentatively identified in the press already. Therefore, the
OAG asserts, the particularized need for transparency and accountability are
not overcome by #152’s arguments against disclosure.
Individual #153
37
The OAG’s rebuttal points out that this individual already has been
tentatively named in the media and that the particularized interest in full
disclosure outweighs the individual’s request for anonymity.
As the court has noted above, this court’s decisions in favor of public
disclosure are in no way endorsements of the allegations, any more than its
earlier order for redactions constituted a repudiation of the allegations. It does
seem from the Report that the Archdiocese did, at one point, characterize the
allegations as “credible,” and yet has not thus far added #153 to its list of
credibly accused abusers. Having considered the various factors, the court
authorizes the public disclosure of the name of Individual #153 in the Report.
Individual #154
The OAG and the Archdiocese reported being unable to locate Individual
#154. However, according to press reports, this individual confirmed his
identity as #154 to newspaper reports, who were able to locate him. Lee O.
Sanderlin & Maya Lora, “Baltimore Sun identifies 2 priests, one Catholic, one
Episcopal, accused of abusing high school students,” Balt. Sun (May 25, 2023),
2023 WLNR 18233068. According to the newspaper report, while
acknowledging that he was the person identified as Individual #154, he denied
the allegations against him.
If the newspaper report is correct, it seems likely that this individual has
forsaken any claim to further anonymity. But because he has not been given
notice and an opportunity to respond, the court will not authorize the
publication of Individual #154’s name at this time. 6
6
If the OAG properly notifies Individual #154, the Attorney General may renew his motion with regard to that
individual; the motion to disclose this person’s identity is denied without prejudice.
38
Individual #155
The person listed as Individual #155 has, since the release of the
redacted Report, been added to the Archdiocese’s list of credibly accused
abusers. He was also tentatively named in media reports after the release of
the redacted Report. For the reasons set forth in the February order, the public
release of this individual’s name is authorized.
Individual #156
The OAG argued that this person should be identified for the same
reason the other alleged abusers should be identified – because a complete
report of the scope and scale of the abuse crisis requires full transparency,
because secrecy and nondisclosure helped create the lack of accountability
which prevented meaningful, timely responses in the past, and because the
continued anonymity of abusers and church officials simply compound the
problem. Moreover, given that this individual has been tentatively identified
(and has apparently confirmed his identity to the press, while denying the
accusations), this individual’s interest in continued grand jury secrecy is
outweighed by the need for disclosure.
As with the other alleged abusers who deny the truth of the allegations,
this court is not charged with confirming or disproving the claims made by the
39
victims. This court is charged with determining whether the Attorney General
has shown that the presumption of secrecy surrounding grand jury proceedings
should be lifted in favor of publication of this information. The Report makes
it clear that it is reporting accusations against Individual #156, as well as the
Archdiocese’s response – which was to report the accusations when they were
received (nearly 30 years after the alleged abuse). The publication of this
individual’s name advances the Attorney General’s identified need for public
justice, accountability, and transparency. It does not constitute an affirmation
of the accusations within the Report any more than the prior redaction of the
name constituted a rejection of those accusations. The court authorizes the
inclusion of this individual’s name in the public copy of the Report.
As the court has attempted to make clear, none of the individuals named
in the report have been found guilty of anything. Moreover, the worst that can
be said of some of the individuals named in the Report is that he or she played
a role in the Archdiocese that led to him or her having to handle files and
complaints pertaining to accused abusers. The fact that an individual’s name
was redacted was a function of Maryland law regarding grand jury documents;
it was in no way a finding by the court that any of these people engaged in any
improper conduct. When considering the motions to disclose their names, the
court has attempted to consider the potential effects on the livelihoods and
reputations of the named individuals.
40
Several individuals were placed on notice of the proceeding and did not
file written oppositions to the Attorney General’s motions, nor did they present
argument at the hearings held on the Attorney General’s motions. In some
instances, they informed the court that they did not oppose disclosure. For the
reasons discussed above, the court finds that the Attorney General has
presented a particularized need for disclosure of the names of these
individuals. Upon consideration of the various relevant factors, the court will
authorize the disclosure of the following names:
7
The Office of the Attorney General advised the court that this individual, who does not reside in the United
States, was placed on notice by sending the notice to email addresses used by this individual in correspondence
with the Archdiocese. The OAG has further informed the court that the notice was translated into this person’s
native language. The court is satisfied that the person has been placed on notice and has failed to respond.
41
need to divulge the identities of these two individuals, and consideration of the
relevant factors weighs in favor of disclosing this information for the reasons
set forth in the court’s February Order. The court therefore authorizes the
disclosure of the names of the following individuals, believed to be deceased:
One person could not be notified by the Office of the Attorney General.
The OAG informed the court that the Apostolic Nunciature in Washington,
D.C., refused to assist the Office in locating and serving notice upon this
individual, who apparently does not live in the United States. Having
considered the various factors, the court will order the disclosure of this
individual’s identity notwithstanding the lack of formal notice. This person’s
role seemed to be limited to receiving a report from the Archdiocese about its
efforts to identify alleged abusers. The court authorizes the publication of the
name of the individual identified on pg. 79.
The person named on pg. 374 could not be notified. According to the
Office of the Attorney General, its investigators spoke with someone who
identified herself as this person’s spouse and told investigators that he had
advanced Alzheimer’s disease and would be unable to comprehend the notice.
She declined to accept the notice on his behalf.
42
continued treatment of Father Smith because the conduct was isolated and
occurred nearly 25 years earlier.
Did the doctor come to that conclusion after consultation with the
Archdiocese, or on his own? Was the fact that he shared that interpretation a
factor in the Archdiocese referring Smith to him? Were other accused abusers
43
referred to him? By redacting the doctor’s name, the lack of accountability and
secrecy surrounding Smith’s abusive behavior is furthered and extended. By
redacting the doctor’s name, those who were harmed by Smith are denied
knowledge of how and why their abuse was obscured. By redacting the doctor’s
name, the decision of Archdiocesan officials to treat Smith in ways that seemed
to contradict the Archdiocese’s own policies regarding abusive priests remains
attributed (at least in part) to nameless, faceless individuals. According to the
Report, when additional accusations were levelled against Smith, he was again
referred to therapy by Archdiocesan officials. However, after asking to delay
his departure, Smith took his own life before that treatment could begin. By
redacting the doctor’s name, the understanding of this tragic story is
diminished.
Having considered the various factors, the court authorizes the release
of this individual’s name.
The court is denying the Attorney General’s motion with regard to the
following individuals, who were properly put on notice and opposed the
Attorney General’s request to reveal their names:
1. The individual named on pg. 160. At the hearing, the Office of the
Attorney General agreed to edit the Report to avoid direct
mentions of this person’s name. The court concurs; the reasons set
forth for disclosure by the Attorney General do not appear to apply
in this instance.
2. The individual named on pg. 340. This person’s name appears in
the Report in connection with accusations made against Father
Adrian Poletti. However, it appears that this individual heard
accusations of misconduct which had occurred more than 50 years
44
earlier – and the accuser refused to tell him the name of her alleged
abusers. The inclusion of this person’s name in the Report does
nothing to advance any public understanding of the circumstances
surrounding the accusations against Poletti, which are amply
detailed elsewhere in the Report. Disclosure does create a risk of
divulging the identity of the person who made accusations to this
individual in 1999. The Attorney General may edit the report to
exclude this person’s name.
8
For example, the person first named on pg. 208 argued that he believed that information he received about
alleged abused was protected by clerical privilege. This appears to be false, indicating (at a minimum) a training
problem within the Archdiocese on this topic. Others argued that the Attorney General did not have the authority
or jurisdiction to impose “quasi-criminal punishment” on people who did not live in Maryland. But a report
accurately describing someone’s actions is not a “quasi-criminal” anything, and to the extent that the individuals
dispute the accuracy of the Report, they are free to make public any mitigating or contextual information they feel
necessary.
45
doubt the various Archbishops named in the Report believed that as well. All
of them were able to justify their behavior to themselves at the time. But the
net effect of all of this rationalization and justification remains the same: abuse
continued without accountability. Abusive priests were sent to treatment or to
other parts of the country and then returned to positions where they could once
again exploit their positions of trust.
Summary
As a result of the court’s Order today, all but three of the individuals
whose identities were redacted from the earlier Report will now have his or her
name revealed in the Report. The court has already stated, but will state again,
that the inclusion of a person’s name in the Report is not any sort of judicial
determination that this person did anything wrong. It is, rather, simply a
finding that the secrecy that ordinarily attends grand jury proceedings should
be set aside upon a showing of particularized need – a showing that has been
made here. The court is not endorsing the conclusions of the Report by allowing
46
for the publication of names any more than it was rejecting the conclusions of
the Report when it ordered those names redacted in the first place.
Molière wrote: “It is not only what we do, but also what we do not do, for
which we are accountable.” The Attorney General has offered accountability as
a primary basis for setting aside grand jury secrecy and including individual
names in the public version of the Report. For the reasons set forth at length
in this Memorandum Opinion, the court finds that the need for individualized
accountability for both actions and inactions justify disclosure as detailed in
this Opinion.
47