Avery pleaded guilty on March 22 to involuntary deviate sexual intercourse with the boy, and received a 2 1/2 to five year sentence, even though he told authorities he never even met the boy. The only reason Avery pleaded guilty to a crime he didn't commit, according to the defense motion, was that he was credibly accused by a prior victim, and that the prosecution offered him a good deal.
But the deal had one condition, that the defrocked priest plead guilty to a conspiracy involving Msgr. William J. Lynn, the Archdiocese of Philadelphia's former secretary for the clergy. Avery, who was supposed to go on trial with Lynn until he pleaded guilty, was facing a prison sentence of up to 20 years if convicted of molesting the boy, dubbed "Billy Doe" in civil litigation.
The motion to reconsider bail was filed Monday by Thomas A. Bergstrom, Allison Khaskelis and Alan J. Tauber, defense lawyers for Msgr. Lynn, the first Catholic administrator in the country to be convicted of child endangerment for transferring abusive priests from one parish to another. Lynn's lawyers say they were only recently told about the polygraph test by Avery's lawyer, so they cite the polygraph as further evidence that Lynn should be released on bail. Lynn previously was denied bail by Judge M. Teresa Sarmina, as well as by the Superior Court.
A lawyer who represents Billy Doe in his civil claim against the archdiocese described the filing as "complete BS." A spokesman for the district attorney declined comment until a written response is filed in court.
Lynn was convicted on June 22 of one count of endangering the welfare of a child, specifically in the case of the 10-year-old altar boy dubbed "Billy Doe," who was allegedly sexually assaulted by Father Avery. Lynn is now serving a prison sentence of three to six years.
In their motion to reconsider bail, Lynn's lawyers say they were "belatedly notified by John P. Donohue, counsel for Edward Avery, that Mr. Avery may actually be innocent of sexual assault against" Billy Doe. "The innocence of Edward Avery, whose alleged actions served as predicate for [Lynn's] conviction, would render [Lynn] innocent of the charge for which he was convicted."
In their motion, Lynn's attorneys say that Avery "denied having engaged in sexual contact with" the altar boy to prosecutors. "Significantly, Mr. Avery explicitly informed the Commonwealth that he was entering into his guilty plea before Judge Sarmina solely for the purpose of receiving an agreed-upon sentence of 2 1/2 to 5 years and thereby reducing the risk of a far greater prison sentence after trial."
Avery denied sexually assaulting, or even knowing the former altar boy in statements made to William Fleisher of Keystone Investigation Network during a polygraph test, according to the motion. Avery passed the polygraph, Bergstrom said in an interview. Such tests, however, are not admissible in criminal courts in Pennsylvania.
Lynn's lawyers say prosecutors never informed them of the polygraph test, which they claim is a violation of Brady V. Maryland, a U.S. Supreme Court ruling that requires all prosecution evidence indicating the defendant's innocence to be turned over to defense counsels.
"At the very least, knowledge of this information would have affected the tactical decisions pursued by [Lynn's] counsel during the trial,"Lynn's lawyers write.
The motion filed by Lynn's lawyers says that Avery offered to waive the statute of limitations, and plead guilty to an earlier sexual abuse of another boy. The first victim came forward as an adult in 1992. Avery offered to plead guilty in exchange for the same 2 1/2 to 5 year prison sentence, the motion said, but "the Commonwealth refused to accept that plea."
"The only plea to which the Commonwealth would acede was fashioned to connect Mr. Avery to the sexual assault of [Billy Doe} and implicate [Lynn] in a conspiracy to achieve this goal, even though the Commonwealth knew the motivation behind the plea and had compelling reasons to doubt the plea's veracity," Lynn's lawyers wrote.
"This newly discovered information leads to the disconcerting conclusion that the Commonwealth was driven by a zealous and single-minded desire to try [Lynn] and obtain a conviction, despite information that put into question the justice of pursing that outcome,"Lynn's lawyers conclude in their motion.
In an interview, attorney Bergstrom said he believed that Avery never assaulted Billy Doe, and that the polygraph test "tends to support that."
"I firmly believe that Avery didn't touch" Billy Doe, Bergstrom said. "Msgr. Lynn gets convicted for something that Avery didn't do. I don't know why Avery went and pleaded guilty except that he got a good deal."
Bergstrom said he was troubled by Billy Doe's description of a "violent attack" by Avery, because he believed such an attack was "out of character" for Avery. The previous sexual abuse incident described by the victim involved "groping and touching," Bergstrom said.
Both victims appeared in court during the Lynn case to tell their stories.
The first victim notified the archdiocese of his accusations against Father Avery on Oct. 19, 1992. At the time, the victim was a married 29-year-old medical student. The accusations took place 10 to 15 years earlier, when the victim was a teenager. At the time, Avery was associate pastor at St. Philip Neri, where the victim went to church.
The victim testified to the jury that Father Avery used to take him along while he worked as a DJ at Smokey Joe's, a bar on the University of Pennsylvania campus in West Philadelphia.
The victim said that Father Avery gave him his first beer when he was 12. The victim got so drunk one night at Smokey Joe's that Father Avery brought him back to the rectory, where the boy slept in the priest's single bed. During the night, the victim testified that he woke up and found the priest touching and fondling his genitals. That wasn't the only time. The victim said hen he was 19, the priest took him on a ski trip to Vermont, and wound up fondling him again.
Billy Doe told the jury that in 1998, Father Avery took him into a storage closet, shut the door behind him, and put some music on a CD player. "It sounded kind of churchy," the witness recalled, but with more of a beat. "He had me doing a strip tease for him."
The witness recalled "swaying" while he was taking off his clothes, and Father Avery watching him "with this eerie smile."The priest took off his clothes, and "he had me sit on his lap," the witness said. Then the priest said it was "time for me to become a man." The priest then forced the boy to engage in oral sex.
On the day Avery was sentenced, March 22, the former priest was never asked if the charges against him were actually true, or whether he had done the crimes he was accused of committing. A court transcript shows that Avery pleaded guilty to one count of involuntary deviate sexual intercourse, and one count of conspiracy to endanger the welfare of a child.
"In exchange for your please of guilty, your attorneys and the Commonwealth's attorney have agreed to a sentence of not less than two-and-a-half and no more than five years would be imposed," said Judge M. Teresa Sarmina. "Is that your understanding of the negotiations?"
"Yes, it is is, Your Honor," Avery said.
The judge then outlines that involuntary deviate sexual intercourse is a first-degree felony, carrying a maximum penalty of not less than 10 years, and not more than 20 years, while endangering the welfare of a child is a third-degree felony punishable by between 3 1/2 to 7 years.
If the two sentences were served consecutively, Avery would be facing a maximum possible sentence of 13 1/3 to 27 years in prison, the judge told Avery. "Do you understand that?"
"I do, Your Honor," Avery replied.
"Do you think, sir, that you have to plead guilty in this case, or is that something you've discussed and decided to do?" Judge Sarmina asked the defendant.
"It's something I have discussed and decided to do," Avery said.
"Have any promises or representations been made to you by anyone to get you to plead guilty other than what you've heard me state here in open court in front of everyone?" the judge asked.
"No, they have not," Avery said.
"Did anybody pressure you or threaten you in any way in order to get you to plead guilty?" the judge asked.
"No, they did not," Avery said.
"Are you pleading guilty of your own free will?"
"I am, Your Honor," the defendant said.
"Whose decision was it for you to plead guilty, Mr. Avery?" the judge asked.
"My own," Avery said.
The judge asked the prosecutor to read "the elements of the offenses to which you are entering your pleas of guilty." The prosecutor, Assistant District Attorney Patrick Blessington, read the accusations involving the alleged oral intercourse Avery engaged in with the 10-year-old altar boy, as well as charges that between 1992 and 2003, Avery agreed with Lynn and other archdiocese of Philadelphia employees and officials to "engage in a course of conduct" that endangered the welfare of children.
Blessington further stated that Avery "was aided in his efforts to remain in ministry with unsupervised access to parish children and altar servers by Lynn and others in the archdiocese." Blessington further alleged that "Lynn and other archdiocese officials acted in concert with Avery with a common purpose to conceal Avery's known acts of sexual abuse of a minor ... so that Avery could remain in ministry without the knowledge of parishioners ..."
"Are those the facts to which today you are entering your plea of guilty to the two charges we have already discussed?" the judge said.
"They are, Your Honor," Avery said.
The judge read the two charges, and Avery pleaded guilty twice.
"The court finds that the entry of your pleas has been made knowingly, intelligently and voluntarily, and therefore, I will accept them," the judge said before imposing the agreed upon sentence of 2 1/2 to 5 years in prison.
When the case went to trial, however, the jury acquitted Lynn of conspiring with Avery and/or anyone else to endanger the welfare of a child.