This is a bad time for Jeffrey Lena to have quit caffeine. In Kentucky, the 51-year-old attorney is defending Pope Benedict XVI from a deposition motion in a case involving child abuse by clergy.
In a suit pending before the U.S. Supreme Court, Lena argues that the court has no jurisdiction to try the Vatican for transferring a predatory priest from Ireland to Oregon.
In Mississippi, he is defending the Vatican against accusations that it participated in a money laundering scheme.
In New York, Lena is defending the Holy See in a commercial licensing dispute about the use of images belonging to the Vatican Museums.
Wherever in the United States the Vatican stands accused, Lena is there to protect it.
"I am counsel for the Holy See," said Lena.
As an international clerical sex abuse scandal has rocked the Roman Catholic Church and raised profound questions about the meaning of sin and crime, penance and punishment, church and state, Lena, a sole practitioner who works out of a small office in Northern California where his wife has kept the books, has taken the lead in defending the Vatican in the courts of law and public opinion. That means the mild-mannered and exceedingly reclusive comparative law specialist is swamped. And he looks it.
Puffy bags hung under Lena's brown eyes on Wednesday morning as he ordered an herbal pomegranate tea at a Washington coffee shop. With waves of salt-and-pepper hair, a workman build, unclipped fingernails and an outfit of plaid flannel shirt, blue jeans and black shoes, Lena doesn't look the part of advocate for the supreme pontiff of the universal church, prince of the apostles, and vicar of Jesus Christ on Earth.
The genesis of Lena's employment with the Vatican is an enduring church mystery upon which he refuses to shed any light.
"I've never wished to be in the public eye," said Lena, who once spent three hours hiding out in an empty Austin courtroom to avoid photographers. "And this is like suddenly crossing a divide from a private to public figure and I wish to retain my privacy."
Some of Lena's former opponents say he is in way over his head and does not possess the legal heft to command such complex and historic cases. Victims groups say Lena's deft navigation of legal loopholes is anathema to an institution built on the revelation of truth. But Vatican supporters say he is effective, and that his immunity defense has broader applications for international law beyond the current scandal. What is clear is that through his newly voluble response to media inquiries about the Vatican's actions, the down-to-earth lawyer has emerged as the pope's de facto spokesman.
Lena lives with his wife and son in a Berkeley Hills home that had no television until last Christmas. His family has owned the property since the 1960s. His grandfather, Lino Lena, emigrated from Italy, and his father, Leland, a public-school teacher participated in the invasion of the Philippines as a Coast Guardsman. Raised Catholic, he and his two younger siblings accompanied his parents to Sunday mass and hunted for Easter eggs. Lena was a shy, "cerebral" and "athletic" young man, according to his brother, Justin Lena, now living in South Dakota. He lettered in tennis and took Latin lessons.
As the Lenas raised their family in Berkeley in the 1960s, John XXIII, affectionately known as the "Good Pope," issued a 1962 policy focused on the high church crime of solicitation of indecent acts during confession and the "foulest crime," concerning clerics who have acted obscenely towards other men, children or "brute animals."
A central concern in the Catholic Church has long been to protect priest from the whims of powerful bishops who could punish them for expressing opposing viewpoints. The policy emphasized secrecy, but also from civil authorities for whom the severe church punishment of defrocking a priest is a veritable slap on the wrist.
Questions about the relative powers of canon and civil law couldn't have been farther from Lena's mind growing up in Northern California. He got good grades in high school, but he cared more about sports.
After graduation, he worked in construction and helped his cousin build a house in the Oakland Hills. He became more intellectually curious at the University of California, Santa Cruz, from which he graduated in 1982, and earned his M.A. in history from University of California at Berkeley in 1986, specializing in the roles different religious traditions played in shaping American history.
According to the University's alumni association, the lone activity listed under his name at Berkeley was "reading/study." In 1988, he married Adele D'Alessando, of Milan, and became a candidate for a PhD in history, did all the course work and oral exams but never delivered his thesis. Instead he started teaching history at the University of Maryland and UC-Berkeley.
In 1993, Lena enrolled in Hastings College of the Law, where he became friends with Ugo Mattei, a renowned Italian legal scholar who Lena calls a "master" of comparative law.
With Mattei's help, Lena transferred to Berkeley's law school and studied at the University of Milan. In 1996, Lena, his law degree completed, returned to Italy, as a visiting professor in Italian universities.
According to Luisa Antoniolli, a comparative law professor at the University of Trento who was friendly with Lena, he was always busy, lagging behind on work and popular with faculty and students. (She said that one anonymous evaluation at the end of his course read, "you are very beautiful but you should change your glasses.")
Antoniolli said the last time she saw Lena, he had already taken on some of the Vatican cases, a development that surprised her. "The Vatican doesn't sound like the exact place where Jeff would really feel at home," she said. "Not at all."
Somewhere along the line in Italy, Lena established a life-altering relationship with the Holy See. Lena said that he became counsel to the Vatican through "academic and professional associations in Italy" and declined repeated requests to explain the connection.
Mattei, who has since fallen out with Lena, claimed to be the link.
"I involved him with the Vatican for some cases in the US unrelated to the current issues," said Mattei in an e-mail message. He added, "We worked intensively together for the Vatican for a couple, maybe three years, but all of that was with the former Pope and Secretary of State."
But Mattei, who has called the Italian communist Il Manifesto his favorite newspaper, is an odd person to have connected Lena to the Vatican. "Mattei is a pretty left-wing guy," said Antonio Gidi, who co-authored a book on comparative law with Mattei, and who pointed out that Mattei had also co-authored another book, "Plunder" with Laura Nader, the sister of Ralph Nader. "He is as far away from the pope as you can get."
A source with better understanding of the situation said that Mattei put Lena in touch with Franzo Grande Stevens, a top Italian lawyer who represented the late Fiat chairman Gianni Agnelli, and that he chose Lena for the job of defending the Vatican Bank.
Lena said there was never a religious "litmus test" for him to join the Vatican's defense.
"He got hired in those cases because they needed somebody," said Mark Chopko, who acted as general counsel for the United States Bishops Conference between 1987 and 2007 and now works for a private firm in Washington. "Commercial litigation is very labor intensive, the people in charge of the institutions in Rome needed a commercial litigator."
Lena views his defense of the Vatican under an overarching principle that a state should only have jurisdiction over a foreign sovereign when harmful conduct is actually attributable to the foreign government itself. If a state reaches out to take jurisdiction over another country, the delicate balance of international power can be undermined.
"Just because a sovereign is small," said Lena. "It does not mean that its rights in this regard should be trampled upon."
"Often an immunity argument seems unfair in the specific case," said Paul Clement, who served as United States Solicitor General between 2005 and 2008 and who is assisting Lena on the Supreme Court aspects of the Portland case. "But it is for a broader policy goal."
Not everyone is so impressed with Lena's ideas.
Lee Boyd, a lawyer with the California law firm of Howarth & Smith, said she was astonished that the Vatican used Lena as its counsel.
"He's not your typical aggressive showy trial lawyer, he tends to be passive in the courtroom," she said. "He's not a big-time lawyer. He seems like a small-town lawyer and doesn't seem to get the larger issues. I don't know if he would make it in the high stakes world that I operate in with the big firms. He's not in that league, not in that caliber at all. I've always been curious why Jeff Lena has the Vatican and not a big firm like the other sovereigns hire. It's a mystery to me."
("She may be upset because I defeated her," Lena said of Boyd. "Notwithstanding the fact that I am unassuming in manner and do not engage in grandstanding.")
While the restitution case in California unfolded, a sex abuse scandal swept over the American church, and ultimately led to American bishops convincing the Vatican to accept new norms that established zero-tolerance for abusive priests in the United States.
In 2002, the abuse victims' lawyer Jeff Anderson brought John V. Doe vs. the Holy See in Portland. After many years of litigation, the 9th Circuit appellate court ruled that the Foreign Sovereign Immunity Act did not offer blanket coverage to the Vatican because of a tort exception for harm suffered at the hand of a foreign entity in the Unites States.
"The Vatican controls the operation of the priests," said Anderson.
The appellate court ruled that it would be possible to proceed on the theory that the priest is a direct employee of the Holy See, though many lawyers believe such an argument is exceedingly difficult to prove.
Lena then petitioned the U.S. Supreme Court to have the State Department and Department of Justice weigh in on the case. On March 12, Anderson argued before Solicitor General Elena Kagan, a top candidate for the Supreme Court, in Washington. Anderson said that as he walked out, Lena was waiting outside. They shook hands and then the Vatican's counsel went in to argue the Holy See's side.
"He's always been kind of an enigma," said Anderson who called Lena a formidable, civil adversary. "In going after the bishops I always got these white glove firms, a gazillion lawyers, the people who represent corporate America. Here, Jeff's in the lead role."
By 2003, Ratzinger, then prefect of the Holy See's watchdog congregation, had taken a more aggressive and hands-on approach to the disciplining of alleged abusers. But the cases kept coming. In 2005, abuse victims filed a putative class action lawsuit in Kentucky, which does not have the burden of proving that priests are employees of the Vatican.
In that case, the plaintiffs are trying to show that negligent bishops, in their capacity as Vatican officials, caused injury on U.S. soil by failing to report predatory priests to civilian authorities. Lena at first slowed the case down by demanding that documents be served to the Vatican in proper Latin, but the 6th Circuit Court of Appeals ultimately ruled that the Vatican does not enjoy total immunity, because, assuming a tort was committed, it's possible that the bishops are officials of the Vatican.
Last month, Lena filed documents with the U.S. District Court in Louisville claiming that Benedict is immune from the jurisdiction of American courts because he is the head of a sovereign state, and that American bishops are not employees of the Vatican. Lena also plans to refute that the 1962 church policy required clerics to keep sex abuse secret from civil authorities. McMurry said he thought Lena was an able lawyer, though when he first discovered that the relative legal novice would be lead counsel for the Holy See, "I thought it was a hoax," McMurry said.
("Ask him if he thinks it's a hoax anymore," said Lena.)
Lena is now a familiar face to the top Vatican powerbrokers. In 2006, Lena oversaw the deposition of William J. Levada, who succeeded Ratzinger as the prefect of the Congregation for the Doctrine of the Faith, as part of a bankruptcy proceeding against the archdiocese of Portland. In the deposition, Lena set the line so that Cardinal Levada answered questions regarding his activities as an Archbishop of Portland, but nothing touching on his work as a Vatican official.
Since then, the "filth" that Benedict lamented in the church, and that many prefects once considered an uniquely "litigious" American culture, is now at the doors of St. Peter's.
According to several church insiders, Lena has expressed frustration that Vatican officials in Rome have failed to get the church's point across clearly, that too many Cardinals were chiming in off message and that the church had to speak out more because the lawyers on the other side were speaking out.
"In my conversations with Jeff, it appears that he has become very instrumental as a spokesperson for the Vatican in terms of public relations. They are now leaning on Jeff for advice and counsel," said McMurry. "I do know that recently he was a bit frustrated that these documents were making their way into the press, that Jeff was really torn that he needed to stay home and write a brief when he really needed to be at the Vatican taking care of damage control."
"For me it's not damage control. It's providing counsel," said Lena. "The frustration does not come from statements of individuals, who are of course free to speak their piece. The frustration comes from the media's over-attribution -- mis-attribution, in fact -- of individuals' views directly to the Holy See."
The Vatican seems to be getting it. On Monday, the Holy See posted online a new guideline to its bishops around the world that, to some who have worked with him, sounded a lot like Lena pushing the church into the future. "Civil law concerning reporting of crimes to the appropriate authorities should always be followed."
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