As DA in '79, he decided not to prosecute, records indicate
February 5, 2008- In 1979, then Outagamie County District Attorney David Prosser told a mother he did not want to prosecute a Green Bay priest who had abused her sons because "it would be too hard on the boys," newly released documents indicate.
The priest, John Patrick Feeney, who is now 81, went on to abuse other children before he was sent to jail in 2004.
Now a justice on the Wisconsin Supreme Court, Prosser is set to hear a case brought by another priest that could result in Feeney being freed from the Fox Lake Correctional Institution, where he is serving a 15-year sentence.
One of Feeney's victims, Troy Merryfield, on Monday called on Prosser to step aside when cases involving priest sexual misconduct come before the high court.
"He knows damn well what happened and what was said," said Merryfield, now 43. "He dropped the ball, and he should recuse himself."
Prosser, through a spokesman, declined to comment, saying he could not discuss the matter because of litigation pending before the high court.
Prosser's involvement in Feeney's case was described in documents released by lawyers who are now suing the Diocese of Green Bay for fraud in connection with Feeney's abuse of Merryfield and his brother, Todd. They say the church had long known that Feeney had abused children but did nothing to warn parents in parishes where Feeney was assigned.
Prosser and the rest of the Wisconsin high court ruled unanimously last year that the church could be sued for fraud because of its failure to warn parishioners. In 2005, he authored a decision that barred lawsuits against the church where there was no proof that the archdiocese was aware of misconduct.
Advocates for the victims of childhood sexual abuse are pressing both the courts and the Legislature to open the door to more lawsuits. Jeff Anderson, a St. Paul lawyer who represents clergy abuse victims, said the fraud decision opened the door narrowly – it allowed seven cases in Milwaukee to proceed and the two by the brothers against Feeney in Green Bay. The Wisconsin Supreme Court will hear oral arguments March 7 on another case in which the church is accused of negligence. If the court rules in favor of the victim, the door to a number of other lawsuits could open.
Prosser's role questioned
Peter Isely, a spokesman for Survivors Network for those Abused by Priests, said documents contained in the Feeney file raise questions about Prosser.
"He literally could let out the pedophile priest he failed to prosecute 30 years ago who went on to assault more children," he said.
Isely was referring to a case now before the Wisconsin Supreme Court – one involving another priest accused of sexual misconduct, who is challenging the legality of "tolling." Under Wisconsin law, the clock stops ticking on the statue of limitations for charging someone with child sexual abuse when the accused leaves the state.
The case could apply to Feeney, who was charged and convicted in February 2004 of three counts of sexual assault of a minor and one count of attempted sexual assault of a minor. The case involved the Merryfield brothers, who were 12 and 14 years old when they were abused by Feeney in 1978 while he was assigned to St. Nicholas Parish in Freedom. Feeney left the state in 1985 – stopping the clock on the statute of limitations – and authorities here were able to have him extradited in 2004 for prosecution.
According to police reports, the Merryfields' mother initially complained to the diocese, and she dropped the matter when she was told the priest had been removed from the ministry. When she found out he had been moved to another parish, she called police. Prosser, accompanied by a deacon and another member of the parish, went to the woman's home, where he told her the trial would be too hard on her sons.
"I was ready to take the stand," Troy Merryfield said Monday. "He (Prosser) said it would be too embarrassing for a kid my age and said what jury would believe a kid testifying against a priest? Then he said, what really makes it bad is that Feeney's brother, Joe, sang on the Lawrence Welk show and everybody watched that back then."
There were already complaints of sexual misconduct at the new parish, but it's unclear if the mother or Prosser was aware of them.
"Did he (Prosser) follow up with the bishop of Green Bay to see how this man was being treated?" Isely asked. "If he had checked to see where they put this man, he would have found he had been placed in another parish where he abused another child."
Prosser is not a Catholic. The question of his relationship to church officials is important, Isely said, because "if he believes that the church has done a good job in taking care of these matters, can he now fairly decide cases involving the church?"
Stephen Gillers, a nationally recognized expert on legal ethics and a professor at New York University, said a judge's involvement in one case would not necessarily prevent him from sitting on other cases involving the same defendants or circumstances. The key factor would be how narrow or broad his involvement.
The judge, Gillers said, needs to consider if the facts he was aware of as a prosecutor are enough to warrant disqualification.
"If there can be a reasonable opposing view, he has the obligation to reveal his involvement," Gillers said.
Gillers was speaking in general terms, not on the specifics of this case.