A Maricopa County Superior Court judge must decide whether Monsignor Dale Fushek could get a fair trial if all five of his alleged victims were allowed to lay out their complaints of sexual misconduct in one trial in front of a single jury.
But Fushek's attorney, Thomas Hoidal, said jurors could not competently keep each man's accounts of abuse separate, so one of them could prejudice others in the same trial.
On Friday, Judge Joseph Kreamer heard arguments in an appeal by prosecutors who object to a Sept. 16 ruling by San Tan Justice of the Peace Sam Goodman that allows for five separate trials for the former priest of St. Timothy's Catholic Community in Mesa. Those trials would proceed, one after another, beginning with the oldest alleged instances of sexual misconduct. Two of the five men are bringing two counts each against Fushek.
The 56-year-old priest, who did not attend Friday's hearing in Mesa, is accused of contributing to the delinquency of a minor, indecent exposure and assault stemming from hearing confessions and counseling boys in the parish's Life Teen program between 1984 and 1993. Specific allegations include Fushek's pressing the boys for specifics about sex and their own experiences, inviting one boy into his bed, engaging in kissing and snuggling and exposing himself as he got into and out of a hot tub. The assault case relates to a 15-year-old boy's complaint that Fushek "flicked" his genitals with the back of his hand in the rectory of St. Timothy's during a two-year relationship.
Fushek, former vicar general of the Roman Catholic Diocese of Phoenix, was initially charged in November 2005. He was placed on paid leave by Bishop Thomas Olmsted, but his salary was cut off last winter after the priest started a nondenominational ministry in Mesa in defiance of the bishop's orders.
On Friday, prosecutor Barbara Marshall argued for one trial because it would show Fushek was engaged in a continuous and overlapping pattern of misconduct in a "close-knit Catholic community" that had commonality with Life Teen, an international Catholic youth ministry that Fushek co-founded. She said Fushek had an "overarching intent" that instead of counseling teens, he was seeking sexual gratification. That could be proven by bundling the complaints into a single trial, she said, but if Goodman's ruling stands, "Our case has been cut off at the knees."
"Separate these, and you don't see the nexus," Marshall told the judge. "Everything is so intertwined in the case."
Single trials would be "trials in a vacuum," she said.
Marshall said the heart of the state's case focuses on three kinds of conduct: touching, nudity and sexual conversations. Taken together, evidence shows "continuous activity during seven or eight years" that Fushek did so for the priest's sexual gratification, she said.
But Hoidal pointed to case law to show that the specific complaints against Fushek are too different to be brought together in the same trial, such as the assault complaint and the priest's alleged graphic conversations about boys' sex lives. He said the propensity of evidence produced in a single trial would be prejudicial and unfair for Fushek.
Marshall called prosecuting the popular clergyman, once eyed as a future bishop for the diocese, "an uphill battle."
On Friday, Barbara Dorris, a spokesman for the Survivors Network of Those Abused by Priests (SNAP), based in St. Louis, Mo., accused Fushek of "desperately trying to do in court what he's done in real life: Separate his victims and his crimes to avoid accountability for his sick manipulation of innocent kids."
The judge said he hopes to rule before the holidays, but another trial set for next week could delay his decision in the Fushek case.
Last February, Fushek successfully appealed to the Arizona Supreme Court to grant him a jury trial, rather than a trial before a judge. The court ruled that misdemeanor crimes "involving sexual motivation are serious offenses" that expose a defendant to the possibility of sex offender registration.