As it looks now, ex-communicated Monsignor Dale Fushek will be getting his way. It seems he will be able to take on his accusers of sexual misconduct one at a time. The five males bringing complaints won’t be ganging up to give “critical mass” to their cases and, together, try to show a pattern of actions by the clergyman.
It has been more than a year since San Tan Justice of the Peace Sam Goodman rejected the Maricopa County prosecutors’ arguments for one trial, but Prosecutor Barbara Marshall appealed that ruling, arguing the five men’s stories and account needed to be shared in a single trial to prove Fushek’s pattern of sexual motivation. A Maricopa County District Court judge upheld that, and an appeal was filed. Marshall voiced publicly that Goodman’s decision, if upheld, meant “our case has been cut off at the knees. Late in September, Marshall and her team were informed the Court of Appeals had denied the requested reviews.
So the case goes back to Goodman’s court. Fushek, who had ascended to be the second most powerful clergymen in the Catholic Diocese of Phoenix, as vicar general under former Bishop Thomas O’Brien, will be tried before separate juries. In 2007, he successfully won an Arizona Supreme Court ruling that allowed him to have jury trials, not trials before a judge. Goodman had previously ruled the trials would take place in front of his bench with his ruling on Fushek’s guilt or innocence. But Fushek successfully pressed for his own trials, noting that he could be labeled a sex offender if convicted in a judge-ruled case. And that could doom his ministry to families and children.
Fushek was first accused almost five years ago, but the long litany of rules, appeals and motions has stretched out disposition of the cases. On Feb. 5, 2009, the Maricopa County Superior Court upheld Fushek’s case for five trials to resolve the seven misdemeanor churges, brought by men who were teens in alleged incidents between 1984 and 1993.
Together, they represent one count of assault, one of indecent exposure and five counts of contributing to the delinquency of a minor. Maricopa Judge Joseph Kreamer ruled that the series of incidents were separate and that it would be unfair to bundle them together as if they were all related. “The court does not believe that the alleged offenses are based on the same conduct , or are otherwie connected in their commission,” he had determined. Kreamer said the incidents took place across the expanse of almost a decade, in various settings and were not related close enough.
That jibed with Goodman’s original decision. Goodman had decided the five trials would be booked from the oldest incidents to the newest. Each trial would follow the other “as soon as practical following the conclusion” of each previous trial.
The first is contributing to the delinquency of a minor complaint by Carl Mawhinney, who accuses Fushek of “numerous sexually related discussions” about his sex life betwen 1984 and 1988. It would be followed by a trial, on charges of assault and contributing to the delinquency of a minor between 1985 and 1987, brought by Marc Tropio. The third trial would involve charges of contributing to the delinquency of a minor and indecent exposure, between 1987 and 1990, brought by Marc Olson. The fourth trial would involve contributing to the delinquency of a minor between 1989 and 1991 where Doug Cordano contends Fushek discussed his sexual activities. The final trial would focus on a count of contributing to the delinquency of a minor between 1991 and 1993 brought by Russell Swingle. Should the first case end in acquittal, motions to dismiss the remander are almost certain. Will it be a case of “separate and conquer”?
Fushek was one of the highest ranked officials charged in the sexual abuse scandals that have rocked the Roman Catholic Church. In late 2007, Fushek, while on a paid leave of absence pending resolution of the charges, started a non-denominatinal church, the Praise and Worship Center in Mesa, with another former, now married, priest, Mark Dippre. It was in defiance of orders of Bishop Thomas Olmsted who had ordered Fushek to sit out ministry pending resolution of his cases. Olmsted subsequently excommunicated both priests.
Goodman has scheduled a hearing for 9 a.m. Nov. 6 for the sides to come together to move forward on laying out terms for the trials.
The Arizona Court of Appeals has decided not to review special