Monsignor Dale Fushek’s alleged victims of sexual misconduct should be allowed to present their complaints together in one trial, Maricopa County prosecutors say.
In the 27-page appeal of a Sept. 16 ruling by San Tan Justice of the Peace Sam Goodman, Deputy County Attorney Elizabeth Burton Ortiz calls on a Maricopa County Superior Court judge to reverse Goodman’s order. His ruling would effectively schedule five consecutive jury trials for Fushek’s accusers to separately lay out their cases against the priest, formerly of St. Timothy’s Catholic Community in Mesa.
The seven misdemeanor charges stem from incidents between 1984 and 1993 when the alleged victims were teens and Fushek was providing counseling, hearing confession and leading teen programs. They include five counts of contributing to the delinquency of a minor, one count of indecent exposure and one of assault. Prosecutors say Fushek, 56, former vicar general of the Roman Catholic Diocese of Phoenix, used his relationship of trust with the teens to perform criminal acts on “unsuspecting and vulnerable” minors and adults.
Fushek, founder of the international Catholic youth program Life Teen, was originally slated to be tried by a judge, but successfully appealed to the Arizona Supreme Court to have a jury trial.
In his September ruling, Goodman said that a jury would be ill-equipped to hear testimony on separate incidents from the five complainants and not have one case prejudice their decisions.
Prosecutors also want the court to reverse Goodman’s action to exclude evidence from cases previously dismissed and where investigation turned up a pattern of behavior they say establishes Fushek’s “aberrant sexual propensity” to commit the offenses.
“In order to prove sexual motivation, the state must be allowed to show the ongoing pattern” of the priest’s conduct, the appeal said.
Ortiz said separating the cases puts both alleged victims and prosecutors in an unfair position because establishing a pattern of conduct would be difficult. “The type of offenses” Fushek is charged with “require multi-faceted evidence to prove intent and rebut his defense,” the appeal said.
Prosecutors anticipate that testimony will allege that the priest invited one person into his bed, pulled on the waistband of his underwear and solicited him to soak naked in a hot tub. Another person alleges Fushek bought him underwear, asked intimate details about his relationship with others, slept in bed with the teen and rubbed his buttocks, according to prosecutors.
Prosecutors say another person will tell about an incident where Fushek was supposed to be supervising boys preparing for an Easter service “but instead watched them play in their underwear in a baptismal font,” as well as testimony that he questioned the teens “regarding when, where and how they had sex,” documents say.
Goodman had ordered that the oldest complaints against Fushek would be the first to go to trial. The first trial had been scheduled for Nov. 17, but the appeal seems certain to delay the cases. Fushek was first charged in November 2005.