A state grand jury may soon be asked to do what perhaps no other has before: consider religious law in deciding whether to charge someone with a crime.The case is that of Dennis Riccitelli, a former Roman Catholic priest charged in 2004 with fraud and stealing thousands of dollars from his Mesa church.
In the middle of last year, while the case was preparing for trial, a Maricopa County Superior Court judge decided those criminal charges were flawed - in part because prosecutors didn't tell the grand jury about the laws of the Roman Catholic Church, known as canon law.
Riccitelli's lawyers had argued the priest was acting within Catholic law when he supposedly used real estate and check-writing schemes to line his own pockets with about $160,000 of the church's money.
Under canon law, a priest has the right to spend his church's money however he sees fit, his lawyers told the judge. So likely no matter how he used the church's money, he could not have run afoul of Arizona law.
After hearing the argument, Judge Silvia Arellano decided Riccitelli didn't get a fair shot with the grand jury.
She threw out the case and told prosecutors to try again. If they wanted to make the charges against Riccitelli stick, she ruled, they'd have to tell the grand jurors about the Roman Catholic brand of law.
"Church law and policies are directly relevant in determining whether (the) defendant committed the crimes he is charged with," Arellano wrote.
Court spokeswoman J.W. Brown said Arellano declined to comment on her decision because the case is ongoing.
Arellano's decision appears to be unprecedented in the state. In no other case has a judge decided that religious law should be used to examine potential crimes, according to lawyers involved with the case and a national legal expert.
"It is an unusual situation, and it causes concern, in our opinion," said Barnett Lotstein, special assistant Maricopa County attorney. "For example, does it blur the line of church and state? Does it only apply to canon law?"
Prosecutors with the county attorney's office worry the decision could open the door for defendants of all religions to use their faiths to justify criminal actions, Lotstein said.
He pointed to polygamist sect leader Warren Jeffs, recently found guilty of being an accomplice to rape, who contended religious law guided and excused his actions. Islamic terrorists have also tried to use their interpretation of religious law to justify certain crimes.
"We do not prosecute people for violating canon law or sharia (Islamic law) or anything else," Lotstein said. "What law is the jury to apply?"
Arellano's decision was made in July 2007, and since then, the Maricopa County Attorney's Office has tried to appeal the case to the state's appeals and supreme courts. Neither would look at it, with the high court deciding to pass on it Feb. 12.
Beyond Arizona, the judge's decision is unusual, if not unique, nationally.
"I've never heard of a judge order a jury to be instructed on canon law," said Stephen Saltzburg, a George Washington University law professor and head of the criminal justice section of the American Bar Association.
The issue, he said, probably comes down to whether Riccitelli had the authority within his church to use money any way he pleased.
If so, it could be an issue of financial mismanagement rather than fraud and theft. Such a situation would require church leaders to deal with it themselves because it may not fall outside of state law.
"If it's a case where a priest shot somebody, it would be simple," Saltzburg said. "But if this case involves a sort of priest's contention that he had the authority to do what he did, it can get tricky."
Kenneth Huls, an attorney for the former priest, said that was exactly the point he made to Arellano in May. Riccitelli had "broad authority" according to Catholic law to use the money in whatever way he deemed necessary, Huls said.
In his written motion, he cited several canon laws, which the international Catholic Church uses to guide its members, to prove his point.
"The Roman Catholic Church views itself as a complete society and therefore maintains the inherent right to govern itself according to its own laws and procedures," the motion said.
Asked last week whether he knew of any other instance when a court decided the merits of a case based on religious law, Huls said: "No, not really. It's not usually evaluated in this way, which frankly stupefies me."
Yet, it was the church itself that first told police about the suspected theft and fraud, which it believed went against Catholic rules.
The Phoenix Catholic Diocese had conducted an audit of Riccitelli's parish, the Holy Cross Catholic Church of Mesa, and found "significant financial concerns ... that did not conform to diocesan policy," according to news reports at the time.
Church leaders reported the discrepancies to Mesa police, who sent detectives to investigate.
The detectives handed over the case to the county attorney's office, which presented the evidence to a grand jury.
The grand jury quickly decided police and prosecutors had gathered enough evidence to make the charges. Riccitelli pleaded not guilty to 14 felony counts but was removed from the priesthood by the diocese.
In Huls' motion, he also pointed to flaws in the grand jury testimony of a Mesa detective. The detective told jurors the church had no finance committee overseeing Riccitelli's actions, when, in fact, it did, the motion said.
Judge Arellano also pointed to the flawed testimony when deciding to send the case back to the grand jury.
But while prosecutors fought the decision as a whole, the order to educate jurors on canon law is what they appealed up to the state Supreme Court.
Former Maricopa County Attorney Richard Romley, who led the office when the charges were originally filed, said he was "shocked" to learn the canon law argument worked.
"This argument was regularly played out" during the office's investigations into sexual abuse by priests, he said. No judge ever took it seriously, he said.
"I'd expect defense attorneys to raise it, but I'd never expect a judge to go with it," Romley said.
Now, county prosecutors have to figure out whether to even try to charge Riccitelli again or just drop the case altogether. If they decide to take it back to the grand jury, they may need to become well-versed in canon law themselves before being able to educate jurors about it.
"We have not ever heard of a situation where a court has ordered an instruction in a courtroom to consider religious law," said Lotstein. "The plan now is to determine whether to take this back to the grand jury. I can't legally say if we are doing that."
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