They may have escaped criminal prosecution, but according to a memorandum of law filed Monday in Common Pleas Court, Bishops Edward P. Cullen and Joseph R. Cistone can expect to be named as defendants in an ongoing civil case against the Archdiocese of Philadelphia regarding the sexual abuse of a former 10-year-old altar boy.
Lawyers representing "Billy Doe" filed the memorandum of law in the civil case of Billy Doe V. the Archdiocese of Philadelphia. Doe is the pseudonym for the former altar boy sexually abused by Father Edward V. Avery, who pleaded guilty on March 22 to involuntary deviant sexual intercourse with a minor, and was sentenced to 2 1/2 to five years in prison. Avery's abuse of Billy Doe also resulted in the June 22 conviction of Msgr. William J. Lynn for endangering the welfare of a child. Lynn is now serving a prison term of three to six years.
The former altar boy allegedly was passed from one abuser to another at St. Jerome's parish. On Sept. 4, two more alleged abusers of Billy Doe -- Charles Engelhardt, a former priest, and Bernard Shero, a former archdiocese school teacher -- are scheduled to go on trial before Judge M. Teresa Sarmina at the Criminal Justice Center.
Engelhardt and Shero were originally supposed to be tried back in March with Father Avery and Father James J. Brennan, before they were severed from the case, at their request. In the criminal case, lawyers for Engelhardt had been seeking the mental health records of the former altar boy, but Judge Sarmina ruled against them.
The defense lawyers then sought to obtain the victim's mental health records through discovery in the civil case, which was filed back in July 2011, but was put on hold until the criminal case was over. On July 29, 2011, Common Pleas Court Judge Lillian Harris Ransom ruled that the defense was not entitled to the victim's mental health records. On Nov. 2, 2011, Common Pleas Judge William Manfredi stayed all discovery in the civil case until June 30, 2012, based on assumptions that the criminal trials would be over by then.
In court papers filed Monday, lawyers for Billy Doe contend that defense lawyers for Engelhardt and Shero are now attempting to take advantage of being severed from the Lynn case by renewing their request for the victim's mental health records after the stay had expired, despite the fact that judges in both the civil and criminal cases had ruled that the defendants were not entitled to the victim's mental health records. In the memorandum of law, Doe's lawyers state that defense lawyers for Engelhardt and Shero had argued that they are running out of time to conduct discovery in the civil case.
The civil case filed on behalf of the former altar boy names as defendants, the Archdiocese of Philadelphia, the late Cardinal Anthony J. Bevilacqua, Msgr. Lynn, Father Avery, Engelhardt and Shero.
In the memorandum of law filed Monday, Doe's lawyers argue, "Engelhardt's contention that he will have insufficient time to conduct discovery prior to the scheduled trial date is illusory. Upon completion of the parallel criminal trial, plaintiff intends to file an Amended Complaint naming [as defendants] the parish, St. Jerome's, Father Engelhardt's Religious Order, the Oblates of St. Francis de Sales, and a number of high ranking Archdiocese officials -- including former Bishop of Allentown, Edward Cullen, and current Bishop of Sagninaw, Michigan, Joseph Cistone -- who conspired with the late Cardinal Bevilacqua to cover up the rampant sexual abuse of children by priests of the Philadelphia Archdiocese."
"Once the amended Complaint is filed, a new Case Management Order will have to be entered, giving all parties new scheduling deadlines," Billy Doe's lawyers argue. "This fact totally obviates Engelhardt's concern that he will have insufficient time for discovery."
The district attorney's office on Monday sent a letter to Common Pleas Court Judge Marlene F. Lachman, requesting that discovery in the civil case be stayed until the criminal case involving Engelhardt and Shero is over.
If Doe's lawyers follow through with their threat to name Cullen and Cistone as defendants, it would move the blame for the sex abuse scandal in the archdiocese a couple of notches above Lynn on the organizational chart. Cullen and Cistone are both former Vicars for Administration, with Cistone succeeding Cullen in that position. As secretary for clergy, Lynn reported to the Assistant Vicar for Administration. As Vicar for Administration, Bishop Cullen functioned as the number two man in the archdiocese under Cardinal Bevilacqua, and had the power to sign documents on the cardinal's behalf.
Lynn was appointed secretary for clergy in 1992. He subsequently drew up a list of 35 abuser priests. On Feb. 18, 1994, Lynn submitted that list to Msgr. James E. Molloy, then Assistant Vicar for Administration under Cullen. Lynn's list divided the abuser priests into three categories. First, Lynn listed three priests as "diagnosed pedophiles:" Rev. James J. Brzyski, who left the priesthood in 1985, Father Nicholas V. Cudemo, listed as having "reduced faculties" and "living with relatives," and Father Peter J. Dunne, who had "no official assignment."
Lynn's next category lists 13 priests "guilty of sexual misconduct with minors."
Number one on the list is Father Edward V. Avery, then a chaplain at Nazareth Hospital, and a resident at St. Jerome's parish.
Under Father Avery's name, Lynn wrote, "alcoholism and action with same minor three times," and "action occurred more than five years ago."
Lynn brought several copies of his list to a high-level archdiocese "issues meeting" on Feb. 15, 1994 attended by Bevilacqua, Cullen and Molloy. Bevilacqua subsequently ordered several copies of Lynn's list to be destroyed.
"On 3-22-94, at 10:45 a.m. I shredded, in the presence of Reverend Joseph R. Cistone, four copies of these lists from the secret archives," Molloy wrote in a handwritten memo discovered in an archdiocese safe in 2006. "This action was taken on the basis of a directive I received from Cardinal Bevilacqua at the issues meeting of 2-15-94 ..." The copies that were destroyed included the original list and copies made for Bevilacqua, Cullen and Molloy, according to Molloy's handwritten memo.
On the note, it says in more handwriting: "witnessed: Rev. Joseph R. Cistone 3-22-94."
Molloy died in 2006. Both Cistone and Cullen have never publicly discussed the shredding of the memos.
Lynn's memo may have been shredded, but the number of 35 abuser priests would be heard of again. On April 29, 2004, Cistone, then a monsignor, was brought before a grand jury and questioned regarding the issuance of press releases in 2002 that claimed the archdiocese had only 35 abuser priests in its employ in the previous 50 years.
Cardinal Bevilacqua also used that figure in an interview with Lynn Doyle. The talk show host questioned Bevilacqua in relation to the Boston sex abuse scandal, which at the time involved more than 80 priests. In his grand jury testimony, Cistone, as vicar of administration, oversaw the issuing of press releases.
"When that press release was generated with the number 35 over the past 50 years, what did you do to verify that the information being released to the public was accurate?" asked Assistant District Attorney Maureen McCartney.
"I relied on Msgr. Lynn's information," Cistone said.
"And who was it that gave the directive to Msgr. Lynn to gather that data?" the prosecutor asked.
"I can't recall how a directive came for that," Cistone said. "It may have been in the discussion. I can't recall how -- where the directive came from or ... I just don't recall."
"Did Msgr. Lynn just give you a memo that said there's 35 cases, or did he provide you with the background and the names of the 35 that he was referring to?"
"He gave a number, and if I recall, it was in a discussion that we had," Cistone replied. "It would have been a table discussion with the -- with different parties present for his Eminence, perhaps our communications person."
"He gave the number, but no names," Cistone said. "I mean, that's where the number would have come from, as an estimate of where you -- or you know, as a number of cases."
Cistone told the prosecutor he thought that in drawing up a list of 35 abuser priests, Lynn had been assisted by lawyers from Stradley Ronon Sevens & Young, the archdiocese's law firm. The prosecutor subsequently asked Cistone about Bevilacqua's public pronouncements.
"Cardinal Bevilacqua, in issuing the public statement that there were 35 credible allegations, he also indicated on a number of occasions that there was no priests presently working in the Archdiocese of Philadelphia that had had a credible allegation against him," the prosecutor said. "You are aware that he made that statement, correct?"
"Correct," Cistone said.
"Okay," the prosecutor said. "He made it both in a press release, and he also made it on the Lynn Doyle show, correct?"
"Well, I don't know about the Lynn Doyle show, but the press release ..." Cistone said.
"Okay," the prosecutor said. "Do you know what was the basis of his making that statement?"
"I do not know other than the information that was presented by Msgr. Lynn," Cistone said.
"Were you present when Msgr. Lynn presented that information to the cardinal?"
"The number 35?" Cistone said. "Yes I would have been in that. As I said, we were a round table discussion where it was presented."
The prosecutor cited Cistone's responsibility as vicar for administration to oversee press releases, and asked what Cistone had done to make himself "comfortable with the fact that that was an accurate statement."
"I relied on Msgr. Lynn's information," Cistone said.
"But in relying on that information," the prosecutor said, "Did you go to him and say, Bill, you put this -- you know, this is the information you're giving me. How did you arrive at it? What did you use? How can I tell the Cardinal that this is something he should feel comfortable saying? Did you do any of those things?"
"I did not," Cistone said. "No."