The issue of whether former priest Edward V. Avery would return to Courtroom 304 in a jump suit was argued again in court Tuesday, and the judge decided to keep all options open.
Avery is the defrocked archdiocese priest who pleaded guilty on the eve of the archdiocese of Philadelphia sex abuse trial to charges of conspiracy to endanger the welfare of a child, and involuntary deviant sexual intercourse with a 10-year-old boy. The jury in the case was never told why Avery suddenly disappeared from the defense table.
On Wednesday, the former altar boy that Avery raped is scheduled to appear in court as a witness. He's going to tell his story of abuse, and then the defense lawyers in the case will have to decide how hard to go after the witness in cross-examination.
As it stands now, the former altar boy poses all the risks of a suicide bomber. If the defense decides to aggressively challenge the witness's credibility, Judge M. Teresa Sarmina may grant the prosecution permission to tell the jury about Avery's guilty plea.
That brought howls of protest from the defense lawyers, who complained that the news about Avery's guilty plea would be prejudicial to Msgr. William J. Lynn, one of two remaining defendants in the case. That's not fair, the defense lawyers said. Avery's lawyer isn't around to cross-examine the former altar boy. And, "We can't cross Avery," complained Thomas Bergstrom, one of Lynn's co-counsels.
The judge had a simple solution for that problem; let's just haul the former priest into court, and see what he has to say. Avery is now doing 2 1/2 to 5 years. For the defense, the wise move may be to give the witness a pass. After all, even if they blow up the former altar boy on cross, what does it matter? Avery has already pleaded guilty.
The judge also reminded the defense lawyers for Msgr. Lynn that they haven't exactly been ripping any prosecution witnesses apart lately. Last week, when the prosecution paraded three former sex abuse victims through the witness stand, the defense spent a grand total of less than 15 minutes cross-examining all three.
It probably would be wise to continue the trend, as the price of playing poker in Judge Sarmina's courtroom has gotten too high. The four lawyers on Lynn's defense don't want the jurors to see Father Avery in a prison jump suit, because they might automatically assume that Msgr. Lynn is guilty.
Lynn, the archdiocese's former secretary for the clergy, is the first Catholic administrator on trial in the country for his role in the pedophile priest scandal. Lynn is charged with conspiracy to endanger the welfare of children. Prosecutors in the case say that the monsignor knowingly shipped abuser priests from one parish to another, putting more children at risk, without any warning to parents.
Judge Sarmina told the lawyers in the case that if she decides to tell the jury about Avery's guilty plea, the jury will only be told about his guilty plea in the rape case, and not the guilty plea in the conspiracy to endanger children case.
Assistant District Attorney Patrick Blessington argued that the jury needs to know what happened to Father Avery.
"This jury was picked when another defendant was sitting there," he said, pointing toward the defense table. Blessington said if the defense goes after the former altar boy, and "challenges the events" as if they didn't happen, the prosecution has the right to tell the jury that the accused rapist, namely Father Avery, pleaded guilty to the crime, and is now doing time.
The judge adjourned court early Tuesday so lawyers on both sides could argue the issue of what to do about Father Avery. The judge also asked defense lawyers to submit case law in support of their arguments. The case that got the most discussion time in court was U.S. v. Massino.
Joseph Massino, AKA "Big Joey," "The Last Don," and "The Ear," was the former boss of the Bonanno crime family who claimed it was prejudicial at his trial to mention some 30 associates who had already pleaded guilty.
So that's where we are in the archdiocese sex abuse case, now in its fifth week of testimony. To get the monsignor off, his lawyers are willing to compare his legal plight to that of a Mafia boss named Big Joey. But they may be overreaching.
The real don in this case, Big Tony, met his demise on Jan. 31, suspiciously on the day after Judge Sarmina ruled him competent to appear as a witness at this trial.
The cardinal left behind a videotaped deposition presided over by Judge Sarmina herself. But there are doubts about whether either side will play the video during the trial, supposedly because the cardinal came off like another Mafia boss, Vincent "The Chin" Gigante.