Whistleblowers were discouraged from bringing counsel to their interview sessions
As the US bishops begin their plenary meeting in Baltimore, Maryland, the Catholic bishops of New York are in Rome for their ad limina visits. Among them are Bishop Richard J Malone of Buffalo, and Bishop Nicholas DiMarzio of Brooklyn, who has recently concluded a broadly mandated inspection of Buffalo at the behest of the Holy See. Rome ordered that inspection in lieu of a criminal investigation many Church-watchers believed would come almost as a matter of course, and for which whistleblowers and others in the troubled Diocese of Buffalo had hoped.
Serious questions have arisen regarding the modes, methods and persons employed during the recent inquiry — an “apostolic visitation” in ecclesiastical parlance — into the Diocese of Buffalo, where whistleblowers and investigative reporters have been gathering and producing evidence of what they claim is a protracted and significant failure to govern, and calling on Church leaders to intervene since at least 2018.
Buffalo has been under intense scrutiny for more than a year, the intensity of which increased after the efforts of investigative reporter Charlie Specht at the local Buffalo ABC affiliate, WKBW, helped Buffalo’s lay whistleblower, Siobhan O’Connor, bring evidence of serious mismanagement before the public. The story became national when the CBS news magazine 60 Minutes profiled O’Connor and another Buffalo whistleblower, Fr Robert Zilliox, in October 2018. ABC’s national news magazine, Nightline, brought Specht’s investigations before the US national public this summer.
Church authorities in Rome have been quietly monitoring the crisis in Buffalo since it began to unfold, but gave no sign of being prepared to intervene until late August of this year, when the Catholic Herald reported that the Congregation for Bishops in Rome had asked Buffalo for a casefile. When Rome decided to conduct a confidential inquiry, rather than a criminal investigation, both observers and many of the clergy and faithful in Buffalo were surprised.
Now, the Catholic Herald has learned that Bishop DiMarzio, the man responsible for conducting the “non-judicial” and “non-administrative” inquiry, which the Apostolic Nuncio to the United States described as a “fact-finding mission” to the western New York see, relied heavily on priests and other personnel of Buffalo diocese for the organization of his apostolic visitation.
The Catholic Herald has also learned that whistleblowers were discouraged from bringing counsel to their interview sessions. Communications obtained by the Herald show that Bishop DiMarzio personally responded to whistleblower Siobhan O’Connor, after O’Connor informed the bishop of her plan to have her canon lawyer, fellow whistleblower Fr Zilliox, present for her interview. Bishop DiMarzio told O’Connor she need not bring any counsel to her interview.
The Diocese of Brooklyn issued a statement to the Catholic Herald, saying: “The Apostolic Visitation was an administrative review of the Buffalo diocese, it was not a judicial process for which anyone we spoke to needed a lawyer, canonical or judicial.”
That Fr Zilliox should not be representing anyone in a matter with which he is so closely involved is almost a no-brainer. Nevertheless, Bishop DiMarzio did not merely object to Fr Zilliox. He responded with blanket discouragement, telling O’Connor: “A canonical or any other advisor will not be needed for your interview,” as the purpose of the visitation was, “to assess the overall state of administration of the diocese on behalf of the Holy See.” O’Connor told the Catholic Herald that the exchange with Bishop DiMarzio happened after the Buffalo diocesan priest who originally called to schedule her interview told her not to bring anyone — “especially not a lawyer or media” — according to her recollection.
One Buffalo cleric involved in the organisational side of things flatly told a whistleblower priest he could not bring a lawyer to his interview. “They said no to the lawyer,” reads a communication dated October 28 and obtained by the Catholic Herald, sent from Deacon Timothy Chriswell of Buffalo to Fr Ryszard Biernat, Bishop Richard Malone’s former priest-secretary. Deacon Chriswell confirmed for the Catholic Herald that he was conveying Bishop DiMarzio’s response to a follow-up query from Fr Biernat regarding his request to have legal counsel present during his interview.
Fr Zilliox told the Catholic Herald he was surprised and concerned by the discouragement of counsel. “I thought it was ridiculous,” he said. “There’s no reason for counsel not to be present.”
Bishop DiMarzio interviewed Fr Zilliox as part of the visitation. Fr Zilliox did not think much of what he saw. “Any lawyer worth his salt,” Fr Zilliox further offered, “would have recognized it was a joke.”
Fr Davide Cito, a professor of canon law who teaches criminal procedure at Rome’s Pontifical University of the Holy Cross, explained that there are thorny technical and practical issues involved. “Strictly speaking,” he said, “there is no right to [canonical] counsel” during an interview that is part of an apostolic visitation. There is no right to counsel even during a preliminary investigation in a canonical penal process — and an apostolic visitation is neither a penal process nor any part of one — though Fr Cito said there is also no rule against witnesses’ having counsel present. “Basically,” he said, “the question is left to the discretion of the apostolic visitor.”
The issue of counsel is not, however, an academic one. Nor is concern over the handling of requests for counsel confined to the ecclesiastical sphere and canonical representation. There is a civil RICO complaint pending in New York state, against the Diocese of Buffalo. State and federal authorities are also actively investigating Buffalo and other Catholic dioceses in New York.
Both the State of New York and the United States recognise the right to remain silent, according to which no one is bound to answer any question that, in the subjective opinion of the person being asked, might serve to self-incriminate. If, however, an individual does answer a possibly self-incriminating question, he or she does not have the right to withhold his or her recollection of the answer given. If prosecutors were to obtain transcripts of the visitation interviews — not only in that eventuality, but certainly then — attorneys tell the Catholic Herald, any subjects’ answers therein recorded could be fair game.
In short: there are real risks to witnesses in the secular sphere. There should be, at least, if Church investigators are doing their jobs.
The legal niceties concerning what is actually admissible in court, several attorneys told the Herald, are complex, nuanced and particular. The bottom line: it’s not the place of an investigator to tell a prospective interview subject there’s no need for counsel.
Multiple sources with knowledge of the proceedings told the Catholic Herald that Bishop DiMarzio had at least one person who appeared to them to be civil counsel present during interviews. One person interviewed as part of the visitation said the man the subject believed to be civil counsel – who was not introduced as such – participated actively in the interview, even asking a question at one point.
From the moment the apostolic visitation was announced, Bishop Malone promised his full cooperation. Apparently, that cooperation extended at least to the organisation of the interview schedule. Fr Walter Szczesny of Buffalo told the Herald he personally arranged some 60 interviews. Deacon Chriswell, who is Director of Deacons in Buffalo and acted as go-between for Fr Biernat in the counsel matter, is also the author of a letter encouraging Bishop Malone not to resign.
“You could cut bait and run,” wrote Deacon Chriswell in the letter to the bishop, obtained by the Catholic Herald, “but if you so choose it would be taking a cowards [sic] way out, but that’s not you.” Chriswell went on to tell Bishop Malone: “If you believe anything that you have preached or taught in the past, it is time to take the hit for Christ and His Church: Clean the place up in the time you have left[.]” The deacon also downplayed the importance of Malone’s having support from the clergy and laity of Buffalo. “I don’t think it is prudent for you to hang your hat on the support of the people or the clergy in the diocese,” Chriswell wrote.
He did have some counsel for Bishop Malone: “What I suggest you say is that you have more work to do, and will redouble your efforts to openly communicate the past sins of the clergy, until all is made clear,” Deacon Chriswell wrote, “and that you will continue to do so until the Pope directs you to step down as bishop in 1+1/2 years.”
In a note accompanying the email to Buffalo deacons in which Deacon Chriswell shared his letter, however, he said he believed the full truth would never come out. “I can’t make a conscious decision that [Bishop Malone] should go without having all the information as to the last few weeks events,” Deacon Chriswell wrote, “I don’t have it now, nor will I ever have it.”
The deacon’s accompanying note also urged Buffalo’s deacons to follow their consciences with respect to the crisis. “If you feel so inclined to let the Bishop know where you stand, let him know,” he wrote.
Fr Szczesny, who helped arrange interviews, told the Herald he was “extremely impressed” with the visitation process, noting “how serious and professional” it was. Fr Szczesny said he hopes the apostolic visitation will prove to have been a learning experience. “I hope that we can learn from this,” he said, “that the Church can be a beacon to society.”
One question Church-watchers have raised is: Why did the Holy See opt for an apostolic visitation, rather than a criminal investigation under Pope Francis’s new reform law, Vos estis lux mundi?
None of the three major Buffalo whistleblowers — Frs Zilliox, Fr Biernat, and Siobhan O’Connor — have filed a Vos estis complaint since the new law took effect on June 1.
“I thought: ‘Why should I?’,” O’Connor told the Catholic Herald. “The evidence was already there,” she said. Fr Zilliox said much the same. “We presumed that there was enough out there already,” he said, “and that Church authority was already aware of evidence suggesting things were gravely amiss — we thought [a Vos estis investigation] would be a matter of course.”
The Diocese of Buffalo declined to comment. The Archdiocese of New York did not reply to our requests. The Apostolic Nuncio, Archbishop Christophe Pierre, was unavailable, and the nunciature was unable to answer questions.
Under the new law, the Metropolitan Archbishop of New York, Cardinal Timothy Dolan, could have ordered a preliminary investigation on his own authority, or at the very least asked the Congregation for Bishops to authorise one. There was broad consensus among Church-watchers that the publicly available evidence was more than sufficient to trigger an investigation under Vos estis.
When it comes to the apostolic visitation, O’Connor told the Catholic Herald she was doing her best to remain hopeful. “Although I responded to the apostolic visitation with as much faith and hope as I could muster,” she said, “I was concerned about its speed, balance and scope.” O’Connor said the visitation was impressively swift, but wondered whether it did not operate under time constraints that were too tight for the task.
“The scandal in our diocese has been raging for over 18 months now,” she said, “Bishop DiMarzio was here for seven days. By all accounts, he intends to turn his report around in time for his ad limina on November 14,” when he and Bishop Malone will be in Rome with the other Region II bishops from New York, New Jersey, and Pennsylvania. “I’m all for efficiency,” O’Connor said, “but this was conducted at an extremely fast pace.”
O’Connor also had concerns over the involvement of people from Buffalo diocese in the visitation, saying she expected it to be an entirely external process. “I was startled to receive an interview request not from a Brooklyn area code but from the familiar [Buffalo] 716-,” she told The Herald. “I recognize that Bishop DiMarzio would need assistance with obtaining phone numbers, but it does worry me that Diocese of Buffalo leadership had more of a role in the process than I’d expected.”
O’Connor also wondered whether, in addition to providing the necessary contact information, Buffalo diocesan personnel helped create the list of interviewees. Sources in Buffalo told the Herald that Bishop DiMarzio met with people belonging to several groups that have close ties to Bishop Malone, including members of Buffalo’s diocesan Pastoral Council, which in September voted 24-4 in support of the bishop. O’Connor and others wonder whether Bishop DiMarzio met one of the dissenting voters. Details of the investigation are confidential, however, as will be Bishop DiMarzio’s report, unless and until higher Church authority decides to publish it.
Christopher Altieri is the Catholic Herald’s Rome bureau chief