Friday, June 29, 2012

Priest Abuse Blog in the Media

There's an exhaustive and authoritative new website that catalogues everything that moved during the priest abuse trial:

Here's what the introduction to the site says:
"The trial of Msgr. William J. Lynn and Rev. James J. Brennan in Philadelphia was complex and lengthy, and its conclusion was a watershed event: the first conviction of a church official for child endangerment. During the trial, witnesses and exhibits provided the jury with information on 21 other accused priests whom Lynn had managed." 
"We have provided two resources for understanding the trial and the evidence that has been presented during it. On this page, we offer a day-by-day list of the witnesses, evidence, and courtroom discussions, with links to articles by journalists who were present at the trial and filed detailed accounts. The mainstays are John P. Martin and Joseph A. Slobodzian of the Philadelphia InquirerMaryclaire Dale and Joann Loviglio of the Associated Press, and Ralph Cipriano of the Philadelphia Priest Abuse Trial Blog sponsored by The Beasley Firm. Many other reporters covered the trial, and we have included selections of their work. We have emphasized the longer accounts. The men and women of the press deserve everyone's sincere thanks for their dedicated and able reporting during this epic trial."
The blog, which began in March, on the opening day of the trial, has since been featured on NPR, USA Today, Jim Romenesko's journalism blog and the BBC. Our total page views are up over 200,000, which is much more than we were expecting. If you were reading the blog, here's what you found out that the rest of the media wasn't reporting:

-- The prosecutor laid an egg in her opening statement to the jury.

-- The judge had a stranglehold on Courtroom 304.

-- The prosecution's strategy was to put the Archdiocese of Philadelphia on trial.

-- The cardinal's spin machine would stoop to anything, even using a couple of pedophiles, to make His Eminence look good.

-- The case against Father James J. Brennan unraveled early.

-- The mother of Father Brennan's accuser took the stand for the prosecution, and her testimony actually hurt the case.

--  When he was a Trappist monk, Father Brennan used to sing White Christmas to chickens.

-- The film debut of Cardinal Bevilacqua's deposition tragically was canceled during the trial.

-- The prosecution was doing some fine play-acting as they read Msgr. Lynn's grand jury testimony into the record.

-- The play-acting revealed the monsignor to be a bumbling detective as he chased a pervert priest on the lam.

-- If you were planning a gay cruise to Thailand, the man to call was Father Mike.

-- A secret archdiocese memo that Cardinal Bevilacqua ordered shredded in 1994 was discovered in a locked safe at archdiocese headquarters in 2006, resulting in an in-house lawyer saying a bunch of guys in collars at 222 N. 17th St. were lying.

-- A former teen Jesus told the jury about being sexually abused during an archdiocese passion play.

-- A nun called out Msgr. Lynn from the witness stand.

--  All the cardinal's men who were missing from the defense table.

-- The prosecution's smoking gun may have hit the wrong target.

-- The fire-breathing prosecutor who called Msgr. Lynn a liar once every four minutes.

-- The momentum in the case at the end was clearly swinging to the defense.

-- The archdiocese was spending at least $75,000 a week on its dream team of four defense lawyers.

-- While the jury deliberated, defense lawyer William J. Brennan played Godfather trivia with Vernon Odom of Action News.

-- The jury was confused by the judge's contradictory instructions.

-- The judge during deliberations completely reversed herself overnight on the key issue of whether Msgr. Lynn had to have acted with criminal intent in order to have been found guilty of conspiring to endanger the welfare of children.

How was that not a story? A judge doing a complete reversal on key jury instructions regarding whether the main defendant had to act with criminal intent? How'd they miss that one?

If you're doing this job right, at some point, you're gonna piss everybody off. At various points during the trial, we've enraged the victims' groups, the defense lawyers thought we hated them, we've ripped the judge, and now those thin-skinned prosecutors aren't talking to us because we rained on their victory parade. Get over it guys.

We will continue to post honest, uncensored reporting that tracks the story where ever it goes. Thanks to everybody for tuning in.

I'd also like to thank the guy who dreamed up this project, Jim Beasley Jr. He's a former juvenile delinquent who grew up to become a doctor and a lawyer. He's been running The Beasley Firm since his dad died in 2004, putting out one fire after another and working his ass off to keep the place up and running as the go-to-firm for serious litigation and legal trial representation. In his spare time, Jim races motorcycles and flies vintage World War II airplanes at air shows.

I had just finished writing Courtroom Cowboy, a biography of Jim's father, back in 2008, when Jim asked me what I was doing. The answer was nothing. Every lawyer in town is interested in the Fumo case, he said. Why don't you go down to the courthouse and see what's going on?

So we blogged the Fumo case. And then Jim suggested blogging this trial. He was also crazy enough to pay me for it. During the 13-week priest abuse trial, Jim was enthusiastic about the blog, but I kept asking him, What are you getting out of this?

"I just think it's a cool thing to do," he said.

Thanks, Jim. 

Wednesday, June 27, 2012

Ongoing Archdiocese Fire Sale Exposes 19-Year-Old Cover-Up of Cardinal Bevilacqua's Lavish Spending

The Archdiocese of Philadelphia is holding a fire sale after running up $11.6 million in legal bills in the fiscal year prior to the priest abuse trial. Facing a $17 million operating deficit, the archdiocese is now selling off the cardinal's mansion on City Line Avenue, and closing down the 117-year-old archdiocese newspaper, The Catholic Standard & Times.

The latest victim of the church's austerity campaign is Villa St. Joseph-by-the-Sea. The grand summer vacation home where Cardinals Krol and Bevilacqua once entertained wealthy donors will soon be up for sale. It's a three-story brick and stucco oceanfront mansion that covers an entire city block along the boardwalk in Ventnor, N.J., and is assessed at $6.2 million.

The impending sale of the cardinal's seaside villa is not only a sign of the archdiocese's changing fortunes, but it also exposes a bunch of lies told by the cardinal's PR guys 19 years ago to get His Eminence out of a public relations jam over the villa. It's an amusing saga.

It should surprise nobody that a cardinal who in 1994 would order the shredding of a list of 35 abuser priests then in ministry a year earlier, in 1993, would launch an elaborate and untruthful cover-up of his own lavish spending habits. 

But you've got to admire the resourcefulness of the cardinal's spin machine. To pull off the villa cover-up, the cardinal and his PR guys enlisted the services of a wealthy donor willing to bend the truth, and they also planted a fraudulent article and photo in the archdiocese's own newspaper. Maybe it's a good thing that they're finally closing that house organ. The archdiocese spin machine also apparently manufactured a phony alibi about a non-existing "reverter clause" on the original deed of sale of the villa to claim that the cardinal couldn't sell the place if he wanted to.

It's a pack of lies that stood for 19 years. Somewhere, Brian Tierney is smiling.

The saga began on June 29, 1993, when a group of 18 protesters held a demonstration at the Cathedral Basilica of Saints Peter and Paul. Using Superglue instead of nails, the protesters attached a list of grievances to the cathedral door that accused the cardinal of betraying the gospel by "willfully neglecting the poor."

The protesters said that at the same time he was closing poor churches and schools in North Philadelphia, the cardinal was redecorating his summer home. Talk about a public relations nightmare for His Eminence. At the time, minority parishioners were picketing the cathedral every week to protest the closings. I was there the day of the Martin Luther-style protest at the cathedral, covering the story as the religion reporter for The Philadelphia Inquirer.

Jay Devine, a spokesman on loan to the archdiocese from Tierney's PR firm, claimed the cardinal's vacation home was also a summer residence for up to a dozen retired priests. "The place was in fairly deplorable condition and needed that kind of work to accommodate the priests," Devine told the Philadelphia Inquirer on June 30, 1993, in a story that ran under my byline.

Permits on file at Ventnor City Hall showed contractors at the villa in 1993 were doing $118,000 worth of interior renovations, plumbing and electrical work. Tax records listed the archdiocese as the owner of the villa since 1963, with the place then assessed at $1.7 million, and the archdiocese paying annual taxes of $30,249 in 1992.

Nine days later, Devine told the Inquirer, however, that despite tax records listing the property as owned by the archdiocese, the property could not be sold because of a restriction on a deed from a benefactor. Here's what the Inquirer printed on July 9, 1993, in a story under my byline:

The villa was donated in 1963 to the archdiocese by Hannah Gertrude Hogan for use as a residence for retired priests, Devine said. Hogan stipulated in a deed conveyed to then-Archbishop Krol that if the villa were sold, it would revert to its original owners ... No archdiocese monies were used to pay for the improvements, Devine said.

Instead, the money to pay for the improvements came from a $1 million donation from John E. Connolly of Pittsburgh, a wealthy donor who made a fortune on riverboat gambling, Devine maintained.

A few days after the original protest at the cathedral, The Catholic Standard & Times ran a photo of the cardinal accepting an oversized $1 million check from Connelly at the villa. The date of the donation was said to be the same date of the protest. Amazing coincidence, isn't it?

Back to that July 9, 1993 Inquirer story:

On the same day as the protest, Connelly donated the money at a ceremony at Villa St. Joseph-by-the-Sea, located on the boardwalk in Ventnor, the spokesman said earlier this week ...

The Connelly gift is paying for the renovation and maintenance of the villa, which is a summer home for retired priests, said archdiocese spokesman Jay Devine. Cardinal Bevilacqua uses the villa for occasional meetings, and during the summer he takes a two-week vacation with relatives at the Ventnor house, Devine said ...

Connelly said he became "very dear friends with the cardinal when he was bishop of Pittsburgh. In an interview, Connelly said he agreed some time ago to make the donation to the archdiocese ... The work at the shore was done in recent months. Connelly said he donated the money because he deeply admired Catholic priests.

"My love is overwhelming for these men who have given their lives to the church," he said. "I try to make their last days on earth a little bit more relaxing and enjoyable as possible."

Connelly, who bills himself as "America's premiere tour-boat operator," owns 18 river-tour boats and a riverboat gambling casino in Davenport, Iowa.

So what happened to that stipulation in the deed, known as a reverter clause, that supposedly prevented the villa from being sold? The principals can't help. The original owner, Hannah Gertrude Hogan, died in 1976; John E. Connelly the magnanimous riverboat gambler died in 2009.

Here's how the Inquirer addressed the factual disparity Wednesday in a story written by staff writer Amy S. Rosenberg:

Though the property -- which Hogan bought for $55,000 in 1961 -- was said to have been donated to the archdiocese, its June 2, 1963 deed shows tax stamps indicating a sale price of $100,000, according to the Atlantic County Clerk's Office. It is now one of the highest-asssessed homes in Ventnor.

The deed examined by the reporter indicated a sale to the archdiocese, not a donation. It appeared to be a standard deed that did not contain any unusual stipulation about the property reverting back to its original owners if sold.

On Thursday, an employee in the Atlantic County Clerk's office confirmed that the 1963 deed of sale by Hogan to the archdiocese for $100,000 did not contain a reverter clause.

According to the Inquirer, the 21,875 square-foot mansion features 19 rooms, 9 bedrooms, a large deck, an elevator, a grand staircase, a marble foyer, and "a spacious back lawn featuring a lily pond, a barbecue and a shrine to the Virgin Mary."

Jay Devine, now a founding partner of his own public relations firm, Devine + Partners, did not respond to an email and a phone call. In Jay's defense, he was probably busy making up new stories. A current archdiocese spokesman, Kenneth Garvin, said it would be difficult for him to comment on something that happened 19 years ago, when he wasn't there.

Meanwhile, court records from a 17-year-old workers' compensation case filed back in 1995 shed more lights on the cardinal's efforts to concoct an alibi to get him out of a public relations jam. The workers' compensation case was filed by a veteran archdiocese employee who worked in close contact with the cardinal. In the claim, the employee, a "devout Catholic," said he suffered "serious mental and physical distress" that left him unable to work as a result of the cardinal's "rude and abusive treatment."

The employee was fired after he suffered a heart attack. Records showed the archdiocese settled the claim by paying the employee $87,500. The employee and his lawyer both say that after the protest, and inquiries from the press, the employee overheard the cardinal lining up the donation from Connelly, but the cardinal wanted to backdate it, to make it look like Connelly had pledged to pay for the renovations before the protest occurred. 

In a comprehensive psychiatric evaluation of the employee done by Wolfram Rieger, a Philadelphia psychiatrist, Rieger wrote that the employee was "severely troubled by the close to $1 million in spending at the cardinal's Ventnor shore residence." The document said the cardinal and a friend, the wife of a wealthy developer, had "engaged in a redecorating and remodeling spending spree at the Ventnor home," which the employee was told "by archdiocese sources was close to $1 million."

The document continues:

On June 30, 1993, the Philadelphia Inquirer printed an article that Cardinal Bevilacqua had spent over $118,000 renovating the shore house. [The employee] was severely troubled to see the church engage in a spin control attempt to avoid bad press.

[The employee] was troubled by the church orchestrating a strategy by which the press would be told that a prominent donor, John E. Connolly, had donated the money for the renovations. [The employee] was very troubled by the fact that the newspapers had only discovered $118,000 in renovations when the church had spent over $900,000 and the church was orchestrating a press campaign to cover up the Cardinal's actual spending and making it appear that the spending was only for the benefit of retired priests who were going to use the shore house.

Sometimes it takes a while to get the story right. In this case, it took 19 years.

The cardinal's guys were always trying to spin the narrative about the cardinal's seaside villa. It wasn't the cardinal's vacation home, it was a residence for retired priests. Yeah, right.

The story I always heard was that whenever the big guy wanted the villa, those retired priests were promptly evacuated to another archdiocese-owned beach house a lot less fancy a few blocks away. Everybody got the boot whenever Cardinal Tony wanted the villa, which he often shared with his extended family.

It's a shame that when the D.A. was walking out of archdiocese headquarters with all those secret archive files, they didn't grab the PR bills from spinmeisters Tierney and Devine. If the archdiocese spent $11.6 million on legal bills in one fiscal year, you have to wonder how many millions they spent over the years to have Brian Tierney and Jay Devine lying on behalf of Cardinal Bevilacqua.

Whether it was using a couple of pedophiles to burnish Bevilacqua's image, or covering up Bevilacqua's habit of spending money like a drunken sailor, or falsely attacking the grand jury prosecutors for supposedly bullying the cardinal on the witness stand, the cardinal's PR guys were always lying about something. And getting paid millions to do it!

As Jay Devine once told a Pulitzer-Prize winning editor of mine at the Inquirer, who was taking notes, he [Devine] represented 1.4 million Catholics, and, "We have a responsibility to make sure the newspaper doesn't tell them things we don't want them to know."

Tuesday, June 26, 2012

Judge Worried About Monsignor Hiding Out At Vatican

Judge M. Teresa Sarmina wants Msgr. William J. Lynn to sign an extradition waiver before she'll consider letting him out of jail on house arrest.

The judge told lawyers in the case that she's worried about the monsignor fleeing the Commonwealth to hide out at the Vatican. If the monsignor wants to get out of jail, he'll have to sign the extradition waiver first. Then if he subsequently becomes a fugitive and is captured on Vatican soil, he cannot legally fight extradition back to the U.S.

Sounds like a plot for a TV potboiler, right? But the judge was serious, and so Lynn agreed to the request. The judge was crabbier than usual as she repeatedly lit into defense lawyer Jeff Lindy for mistakenly telling her last week that the monsignor does not have a passport. He does, although on Tuesday, the monsignor handed his passport over to the judge before he went back to jail.

The judge got things started at the hearing over house arrest by telling lawyers on both sides of the case that she wanted them to be civil.

You mean civil as opposed to criminal asked Assistant District Attorney Patrick Blessington. Blessington. Blessington, usually the most unhinged participant in these legal debates, did not seem to know what the judge was talking about.

The judge continued to hammer Lindy for saying that the monsignor did not have a passport on Friday after the verdict, just before the judge decided to have Msgr. Lynn taken into custody.

The judge slammed Lindy for being "zealous" in representing his client, but not getting his facts straight.

Lindy can get "huffy" as the judge has described it, but Blessington has so many more fouls. The prosecutor has repeatedly slammed the monsignor as a liar and the monsignor's defense lawyers as pampered, overpaid and whiny crybabies always trying to pull some last-minute maneuver to delay justice for their corrupt client. The best part for Blessington is that no matter how loud and obnoxious he gets, the judge never calls him on anything, a fact not lost on Lindy.

"It's remarkable that you're talking about me," Lindy said, glancing in the direction of Blessington. "I don't know why you're going off on me right now," Lindy said. But the judge was just getting started. 

"You stated it quite emphatically," the judge lectured Lindy about the passport that the monsignor allegedly did not have. "It turns out that you were in fact wrong," the judge continued. "Where would you get that understanding?"

Lindy said he might have gotten the wrong information from a relative or another lawyer in the case. He attempted to apologize, but the judge treated Lindy like a kid late for detention.

"If you're chewing gum, please get rid of it," she said.

"Yes, Your Honor," Lindy meekly responded.

The defense called Rita DeCarolis to the stand. She's a senior citizen who has volunteered her home to be the site of Msgr. Lynn's house arrest. DeCarolis said her son's late wife was Lynn's sister. DeCarolis testified that she lives alone. "I'm free," she said to help out the monsignor. She also was willing to let probation officers inspect her house, and call at all hours to check on the monsignor.

Lindy told the judge that his client was 61 years old, had no prior record, and plenty of ties to the community. Lynn was under investigation for ten years by a grand jury and never went anywhere, Lindy said. The monsignor made at least a dozen appearances before the grand jury. He showed up every day for court during the 13-week trial, usually early.

"He is absolutely no risk" to flee, Lindy said. The judge asked Lindy what he would do if despite his promises, his client fled the Commonwealth.

Lindy seemed perplexed. He suggested he could walk on his hands, eat the paper that his motion for house arrest was printed on, do somersaults, flips or whatever the judge wanted.

She glared at him. 

Lindy sat down, and it was Blessington's turn to pour some gasoline on the fire.

"I will be civil," Blessington promised. But within seconds, the prosecutor was talking about Lindy's "material misrepresentations" to the judge, like that passport that Lindy said the monsignor did not have.

Blessington then pulled out a Chicago Tribune story that talked about since 1985, 32 Catholic priests accused of sex abuse had absconded from the country. The Catholic Church, which paid for Lynn's high-priced lawyers, is a "very powerful" worldwide organization, Blessington said. If Lynn fled the country, he could put his collar back on and blend in as a priest anywhere around the world. 

Blessington was only a few minutes into his spiel where he promised to be civil when he briefly returned to the subject of Lynn's behavior on the witness stand. All he did was "lie, lie and lie," Blessington said of the monsignor.

"We're not here to discuss that, Mr. Blessington," the judge said. Wow, a mild reprimand from the judge. It only took 14 weeks.

Blessington skipped over the monsignor's behavior and talked about the "insulting" conduct of the defense team, and how they were now trying to "beg the court's indulgence" to get a convicted felon like their client out of jail.

Blessington asked the judge to consider the "mirror quality of the conduct" of the defense team, and how they reflected their corrupt client. He even took a shot at DeCarolis, calling her "the daughter-in-law of the son-in-law of a third cousin."

Blessington then returned to the subject of Lynn's conduct.

"He has nothing but utter contempt for the legal process," the prosecutor yelled. He doesn't deserve a reprieve from jail, especially considering it was "incomprehensible that he [Lynn] wouldn't get the maximum sentence." Lynn faces 3 1/2 to 7 years in jail after being convicted on the charge of endangering the welfare of a child, a third-class felony.

Blessington said he didn't want anybody to do any special favors for Lynn. "He dare not jump ahead of anybody," in the line of inmates seeking house arrest, Blessington said. 

The prosecutor said the hearing on a house arrest was a waste of time. Lynn's sentencing was only a month and a half way, on Aug. 13. The average wait for an inmate to be processed for house arrest is three or four weeks, the prosecutor said. So at the most, we're arguing about whether "a convicted felon" gets "three weeks of freedom," the prosecutor said. Why bother? He implored the judge not to "indulge these people after what they've done."

From the gist of what he was saying, the prosecutor was now lumping the defense lawyers in with their client as criminals.

Thomas Bergstrom, another defense lawyer, tried to get the conversation back on track. "I think he's entitled to bail," he told the judge. "Where's he gonna go?"

The judge announced a recess so she could read the Chicago Tribune story. She returned, saying that most of the priests mentioned in the story were fleeing to their native country, and skipping out while they were being investigated, or before their trials began. Lynn did not fit in any of those categories, his defense lawyers said.

The judge asked about bail. James Lynn, the monsignor's brother, stood and told the judge how he had put up $5,000, the 10 percent deposit required on $50,000 bail. The judge said that bail would be raised to $100,000, meaning Lynn's family has to cough up another $5,000.

Blessington wanted bail raised to $1 million, so the family's 10 percent deposit would be $100,000, but the judge said she thought that was excessive.

"There's no constitutional right to bail," Blessington said. Lynn also had changed circumstances. 

"Now he's had a taste of jail," Blessington said. "He knows what jail is like." Therefore, the chances are increased that if he's put on house arrest, the monsignor will saw through that ankle bracelet, and make a break for it, the prosecutor said.

The judge asked Lynn if he knew that if he did try to escape, she would "most likely impose a maximum sentence in absentia?" 

"Oh yes, Your Honor," Lynn replied.

And he would give up his rights to an appeal? Yes, he understood that as well.

Lindy tried to assure the judge that the monsignor was not a flight risk. Once again, the judge reminded Lindy that talk was cheap. What would you do if he flees, the judge said. Would you waive your fee?

"Absolutely," Lindy said. For this guy, sure, Lindy said. For some of my other clients, not so sure.

The judge gave the prosecutors a week to draft the extradition waiver. 

Lynn seemed to think the idea that he would be granted asylum at the Vatican was far-fetched. The monsignor was overheard incredulously telling his lawyers, "The Vatican? The archdiocese of Philadelphia won't even talk to me."

Judge Sarmina set a hearing date of 9 a.m. July 5 to consider whether she will grant house arrest. But in the meantime, she told both sides to get the paper work going, so when July 5th rolls around, "I will enter the order at that time," the judge said. 

Blessington asked the judge to stipulate that if she grants the house arrest, the only reason Lynn be allowed to leave is for medical emergencies. If his lawyers want to talk to him, they can drive over to see him.

But the judge did not commit to ordering the house arrest on July 5th. "I may or may not end up granting house arrest," she said. But she was definitely taking Monday, Tuesday and Wednesday off, but would return for that July 5th hearing on Thursday.

"Everybody enjoy your holiday," she said cheerfully as she left the bench for the day. Lynn said nothing as he sat at the defense table, awaiting the sheriff's deputies who would escort him back to jail.

After the hearing was over, Assistant District Attorney Mark Cipolletti said he hoped the judge would ultimately decide that Lynn "be held without bail."

Letting somebody out of jail, the prosecutor warned, is "a bell that can't be unrung." Especially if Lynn decides to flee.

Outside the Criminal Justice Center, Lindy was shaking his head about the judge's theory that the monsignor might hole up at the Vatican.

"That was ridiculous," he said. Asked about the prosecutor, Lindy said, "I think he's way off the reservation. I've never seen anything like the prosecutor in this case."

Monday, June 25, 2012

Jury Didn't Buy Prosecution's Grand Conspiracy Theory

Lost in all the hoopla over the "historic" conviction of Msgr. William J. Lynn was the jury's repudiation of the prosecution's central allegation in the priest abuse case: that Lynn had somehow conspired with predator priests to keep them in ministry, so they could abuse new victims.

The prosecution's conspiracy theory was basically that the monsignor got up every morning and said, hey, what can I do today to keep our bad boys in collars, so they can continue to rape, pillage and molest more innocent children.

On Monday, the jury foreman in the case went on Fox 29 and said that nobody on the jury bought the prosecutors' conspiracy theory that sounded far-fetched when the trial began back in March, and seems even more absurd now that the three-month trial is over, and no evidence was ever presented to back it up.

It would be comical, except that the Commonwealth just spent a ton of money and eight weeks of trial time trying to convince the jury that Bill Lynn the quintessential company man was the alleged mastermind down at the archdiocese of a secret plot to sexually abuse children.

The jury found Lynn not guilty of conspiring with Father Edward V. Avery, or anyone else, to endanger the welfare of children.

On Monday morning, jury foreman Isa Logan went on Fox 29's Good Day and told anchors Mike Jerrick and Karen Hepp that he didn't believe the prosecution's conspiracy theory, and neither did anyone else on the jury.

"It wasn't  about him [Lynn] passing them [abuser priests] on from parish to parish," Logan explained to the two TV anchors. Instead, the jury concentrated on Lynn's supervisory role, Logan said. "It was more on what are your actions knowing about a father [priest], what do you do after the fact when you find out that this person could be a potential problem or is a problem."

"None of us understood or believed that he [Lynn] had the understanding that here's a predator priest, I'll help him get to another parish so he can continue to enjoy what he likes to do," Logan stated. "None of us believed that."

"It's a ludicrous notion," agreed Jeff Lindy, one of Msgr. Lynn's defense lawyers. Lindy said the conviction is based on an old Pennsylvania child endangerment law that didn't really apply to Lynn. The defense lawyer hopes the conviction is thrown out on appeal. 

"It's clearly a complete repudiation of any claim that Msgr. Lynn conspired with anyone," agreed Alan J. Tauber, another defense lawyer who's also pinning his hopes on an appeal. "It's one of the clearest cases for reversal that I've ever seen based on the application of the law," Tauber said.

Lawyers in the case have been free to talk since Judge M. Teresa Sarmina lifted her gag order last Friday, when the verdict was announced. But getting lawyers to talk on the other side of the case has been difficult. Tasha Jamerson, a spokesman for District Attorney Seth Williams, could not be reached for the past two days.

The conspiracy case against Lynn was so weak that even pro-prosecution Judge Sarmina tossed two conspiracy counts to endanger the welfare of children that allegedly linked Lynn to the other defendant in the case, Father James J. Brennan. Brennan's case ended in a mistrial after the jury deadlocked on two counts against him, attempted rape, and endangering the welfare of children.

To anyone who sat through the entire trial, the real conspiracy was the elephant in the courtroom: the archdiocese's successful top-down campaign to keep pervert priests out of jail, and the sins of Mother Church out of the media, and the civil courts. It was so obvious only a table full of prosecutors could miss it.

While defense lawyers talked about an appeal, Lynn remained an inmate of the Curran-Fromhold Correctional Facility, known as CFCF, at 7901 State Road in Northeast Philadelphia. A hearing on whether to spring Lynn from jail and keep him under house arrest until his Aug. 13 sentencing was scheduled for 11 a.m. Tuesday in Courtroom 304.

Whether Pennsylvania's old child endangerment law applies to Lynn may be the key issue if the case is appealed. The interesting thing about the defense theory that the old child endangerment law didn't apply to Lynn is that at one time, the people who agreed with that theory included former District Attorney Lynne Abraham, and a 2005 grand jury that investigated sex abuse in the archdiocese.

A January 12, 2012 defense motion for relief to the Supreme Court of Pennsylvania that fell on deaf ears outlines the appeal case. The applicable state law known as EWOC [endangering the welfare of a child] said: "A parent, guardian, or other person supervising the welfare of a child under 18 years of age commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support."

Here's what the 2005 grand jury report said about whether that law applied to Lynn or any other member of the archdiocese hierarchy: "As defined under the law ... the offense of endangering welfare of children is too narrow to support a successful prosecution of the decision-makers who were running the Archdiocese. The statute confines its coverage to parents, guardians, or other persons 'supervising the welfare of a child.' High-level Archdiocesan officials, however, were far removed from any direct contact with children."

On Oct. 1, 2006, Assistant District Attorney Mariana Sorensen, one of the authors of the 2005 grand jury report, wrote an article in the Allentown Morning Call, calling for the closing of legal loopholes in the EWOC law.

"It was also one year ago that the same grand jury revealed gaping loopholes in Pennsylvania laws intended to protect our children," wrote Sorensen, who helped write the 2011 grand jury report, and also worked on the current archdiocese case.

"The grand jury recommended simple amendments to statutes that would close the loopholes," Sorensen wrote. "Lawmakers have yet to pass any of these amendments ... They should promptly enact the Philadelphia grand jury recommendations to: ... make the law against endangering the welfare of children explicitly apply to supervisors who place children in the care of those known to be dangerous to children ... "

"What criminal law reforms cannot do is identify or hold accountable past abusers and enablers who have successfully concealed their offenses until after the statute of limitations has run," Sorensen wrote.

Hmm, that sure sounds like under the old law, prosecutors were saying they didn't have a case against Bill Lynn.

On Nov. 15, 2007, the co-sponsor of the bill to reform the EWOC law, state Rep. Dennis O'Brien, said on the floor of the state house, "The current law punishes only those people with the duty of care to a child who violate that duty by abusing or endangering the child. This bill acknowledges that employers and supervisors of those abusers should also share the responsibility for the welfare of these children. Thus, this bill imposes criminal liability on the employers or supervisors of abusers who knew of the abuse but failed to act, or worse, concealed the abuse."

Defense lawyer Tauber has researched 280 cases in Pennsylvania involving the EWOC statute. "Never once has the statute been applied to a supervisor of empoloyees before the statute was amended in 2007," Tauber said.

Here's what the law was changed to in 2007: "A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support."

Lynn was secretary for clergy from 1992 to 2004. He got a pass from former District Attorney Lynne Abraham and the 2005 grand jury that investigated sex abuse in the archdiocese. But in 2011, a new grand jury, and a new district attorney, Seth Williams, looked at the same old EWOC law, and arrived at the opposite conclusion, that the law did apply to Lynn.

"In biblical parlance, it's the Pharaoh who didn't know Joseph," Tauber said.

Saturday, June 23, 2012

Father Brennan Walks Out "In The Sunshine;" Msgr. Lynn Taken Into Custody

Moments after he had been convicted of endangering the welfare of a child, Msgr. William J. Lynn bowed his head at the defense table. The issue now was whether his bail would be revoked, and the speaker was Lynn's longtime antagonist, Assistant District Attorney Patrick Blessington.

The monsignor had just been convicted of a third-degree felony that "calls for a lengthy jail sentence," Blessington roared. "Let's start it today. That's justice."

The monsignor had his back to courtroom spectators, but everybody could see the back of his neck and his ears turning bright red.

Moments later, family members wept silently as the monsignor was led away by sheriff's deputies. "Oh God," one young woman sobbed. His shame was now complete. Lynn would spend the night as the newest inmate at the Curran-Fromhold Correctional Facility, known as CFCF, at 7901 State Road in Northeast Philadelphia.

Outside the Criminal Justice Center, Father James J. Brennan walked out into the mid-afternoon heat and was immediately surrounded by reporters and TV cameras.

"I'm very tired, I'm very grateful, I'm very blessed," the priest said as he thanked his lawyers, William J. Brennan and Richard J. Fuschino, Jr., who basically represented the priest pro bono. 

"I think we're a little punchy," said attorney William J. Brennan. "We're just happy to to be out here in the sunshine with Father Brennan, and to be going home."

Instead of jail.

It was a vivid contrast between defendants Friday as the 13th week of the trial came to an end on the 13th day of jury deliberations. Those double 13s turned out to be lucky for Father Brennan and very unlucky for Msgr. Lynn.

Lynn now wears the mantle as the only Catholic administrator in the country to be found criminally liable for sex crimes against minors committed by priests, without touching anyone himself.

At 2 p.m. in Courtroom 304, the foreman in the Archdiocese of Philadelphia sex abuse case stood up to announce the verdict. Isa Logan is a statuesque 6-foot-6 church deacon, Army veteran and former high school basketball player in dreadlocks. He announced that the jury was hung on both charges against Father Brennan, that of attempted rape and endangering the welfare of children. It was a case that had credibility problems from the start, as pointed out on this blog.

The jury found Msgr. Lynn not guilty of conspiring with Father Edward V. Avery, or anyone else, to endanger the welfare of children, specifically a 10-year-old altar boy sexually assaulted by Avery, who had previously been accused of sex abuse. But the jury found the monsignor guilty of endangering the welfare of that same 10-year-old altar boy by allowing Avery to continue in ministry. 

The jury had asked the judge whether Msgr. Lynn had to knowingly act with criminal intent to be found guilty on the conspiracy charge. It was a question that not only confused jurors, but also the judge. On the night of June 14, Judge M. Teresa Sarmina instructed the jury that Msgr. Lynn did not have to act with criminal intent. The next morning, June 15, the judge reversed herself, saying that the monsignor did have to act with criminal intent in order to be found guilty on the conspiracy charge.

When he testified, Msgr. Lynn told the jury that this was the first time a priest under his supervision had  abused a child, and that he was sorry for what happened to the 10-year-old altar boy.

The jury also found Msgr. Lynn not guilty of endangering the welfare of the 14-year-old who was allegedly the victim of attempted rape by Father Brennan.

After the judge thanked jurors for the "great deal of time taken out of your lives," she dismissed them. A stampede of reporters was allowed to bolt the courtroom, and head for their cell phones, which for the past three months, have not been allowed in the courtroom of Judge Sarmina.

The court deputies locked the doors of the courtroom again. The next issue was bail. Jeff Lindy, one of Msgr. Lynn's defense lawyers, argued that his client was not a flight risk.

But Assistant District Attorney Blessington immediately ratcheted up the rhetoric to cross-examination level, where he called Lynn a liar every four minutes. The monsignor had just been convicted of "conduct which is beyond reprehensible," Blessington said. The prosecutor raged about the "despicable lies he [Lynn] told to the grand jury," and the lies he told to this jury."

Now that he was a convicted felon, the monsignor has "great incentive to flee," the prosecutor said. Especially since Blessington said he would seek the maximum prison term for the monsignor. Lynn had the wealth of the archdiocese behind him, Blessington said. The archdiocese was already footing the bill for Lynn's "incredibly well-funded defense team," the prosecutor noted.

"Treat him like the criminal he is," Blessington implored the judge. 

Jeff Lindy, one of Lynn's defense lawyers, argued that the monsignor had been under investigation for more than a decade, and had made eleven appearances before a grand jury investigating sex abuse. The monsignor has shown up every day in court for the past 13 weeks, and always acted the same, submissive, Lindy said. His client wasn't going anywhere.

"He's always had the specter of indictment hanging over him," Lindy said. "He knew this day could come."

But the judge, who favored the prosecution with just about every ruling before and during the trial, appeared anxious to see the monsignor in a jump suit.

"I am leaning to revoking bail," she said. Lindy suggested house arrest. 

Blessington was on his feet several more times. "I'm sick, sore and disgusted," he said at one point. The possibility of house arrest prompted the prosecutor to remind the judge of Lynn's "reprehensible and deplorable conduct over the past 12 years."

While the monsignor had his head bowed at the defense table, Lindy stood with one hand on his client's back. "He has been under the sword of Damocles hanging over him for a decade," Lindy said.

The monsignor was 61 years old, had a clean record, and so many community ties "that it would take me 25 minutes to describe," Lindy said. The monsignor could be on house arrest at his sister's house in Reading, where he currently lives, or at his brother-in-law's house in Philadelphia, Lindy offered.

Any other defendant who was 61 and had a clean record would not be going to jail after a conviction on a third-degree felony, Lindy said. They would also not be subject to the "vitriol" of the prosecutor, Lindy added.

Blessington didn't deny the charge. "Vitriol, oh yes," the prosecutor admitted. "Every speck." Blessington mentioned again that Lynn's defense was "wholly funded by the archdiocese of Philadelphia," and that Lynn had been "pompous and condescending" on the witness stand.

"This man belongs in jail right now," Blessington yelled.

"He doesn't own a passport," Lindy told the judge. "He's not going anywhere."

"He's not a flight risk," Thomas Bergstrom, another defense lawyer, told the judge. "I don't know how you can make that argument," the judge replied. "You cannot speak for what he would do."

Bergstrom told the judge there was no evidence that Lynn was a flight risk. "Why would you think that he would now run?" Bergstrom asked.

"Because he doesn't want to go to jail?" the judge suggested.

"This is not a guy who's not gonna show up for his day of reckoning," Lindy replied in the double-negative.

Blessington got on his high horse again. The monsignor had "committed atrocities," the prosecutor said. "He went in front of the grand jury and lied. He came in here and lied."

Blessington also took a shot at Lindy, who had objected to Blessington's spiel about the archdiocese footing the bill for Lynn's defense team.

"Guess what counsel? You're being paid by the archdiocese! Don't try and hide from it," Blessington shouted.

As happened often during the trial, Blessington was not addressing the subject at hand, whether Lynn posed enough of a flight risk to have his bail revoked. Instead, Blessington was attacking the character of the defendant, and slamming the defense lawyers. Maybe save it for sentencing?

Any first-year law student could see Blessington had strayed far off the subject. But as she often did during the trial, Judge Sarmina made no effort to reign in Blessington. She objected to Lindy's tone as "huffy," but said nothing critical to Blessington.

The judge announced that she was revoking Lynn's bail. She said she would entertain a future motion to place Lynn on house arrest. But for now, the judge ordered sheriff's deputies to remove the dangerous monsignor from the courtroom.

The judge announced that the monsignor would have to turn in his passport. Apparently she didn't hear Lynn's lawyer when he told her the monsignor didn't own a passport. The monsignor did not appear to pose much of a flight risk. The overweight priest can barely walk two blocks without panting heavily. But the judge seemed determined to cap a show trial by tossing the monsignor in the slammer.

Lynn's sentencing was set for Aug. 13th. He faces a prison sentence of 3 1/2 to 7 years.

Lynn's lawyers were downcast when they met with the press.

"He's upset, he's crushed," Lindy said of Lynn. Asked if the monsignor was a fall guy, Lindy replied, "Of course he is. They had a body there, and that body was Msgr. Lynn."

Bergstrom said he wasn't second-guessing his decision to put Lynn on the witness stand. " It was the right decision. I think the jury needed to hear from him."

Outside the courthouse, Isa Logan, the 36-year-old jury foreman, faced the press. He agreed that it was helpful to hear from Lynn, but he noted that Lynn had also apologized from the witness stand for what happened to the 10-year-old altar boy.

Logan was asked why the jury needed 13 days to deliberate.

"We just needed more clarity on the elements of the charge," he said. "It's easy when you're on the outside looking in. On the inside, it's a little different."

Logan said jurors were open-minded, passionate, and "wanted true justice." The case, he said, opened his eyes.

"I never knew about the stuff happening in the church," he said. "My heart goes out to the victims."

"I'm a father" of two sons and a daughter, Logan said. "I wouldn't want my child to go through anything like this."

Logan was asked whether Lynn was a fall guy for the Catholic church. As a former Army officer stationed in Korea, he said he didn't buy into that argument. Logan had plenty of superiors giving him orders. If an order was inhumane, Logan said, he always had the option of not carrying it out. It was the same telling argument a nun had made from the witness stand the day she called out Monsignor Lynn.

"I'm a human being before I'm a soldier," Logan said. The jury foreman, a church deacon, said he prayed that "God would have his way" with the Catholic church.

On July 23, Father Brennan will return to the courthouse for a status hearing on his case. The district attorney must now decide whether the priest should be retried. It may be an uphill climb. Two female jurors told Fox 29 reporter Kristen Byrne that they didn't find Brennan's lone accuser, Mark Bukowski, credible, saying it seemed like he was making up his testimony on the witness stand.

Isa Logan, the jury foreman, went one step further, saying on Fox 29 Monday morning that the mother of the alleged victim "kind of made it a little cloudier for us because her herself said she would never know what happened that night."

A few blocks away from the courthouse, District Attorney Seth Williams held a press conference. Normally, when you have a trial and you only win on one of five counts, it's not something to crow about. Especially when the jury rejected the prosecution's main argument, that Lynn had conspired with Father Avery to endanger the welfare of children by keeping the priest in ministry.

But Williams acted like he had just won the Super Bowl.

"This is a monumental verdict for the named and unnamed victims of child assaults," the district attorney said. The prosecutors had taken on "for the first time the conspiracy of silence" that led to abuse of minors in the Catholic church that had "gone on for centuries," said the district attorney, himself a former altar boy.

Williams said he would have to review the evidence to decide whether to retry Father Brennan. But he was happy that Msgr. Lynn would now have to "face the consequences of his unspeakable crimes."

Was he talking about the My Lai massacre?

Williams ducked questions on whether he should have indicted Lynn's boss, Cardinal Bevilacqua. The late cardinal was one of many members of the Catholic hierarchy who "had dirty hands," Williams said. But the prosecutors decided to go with the case where they had the most evidence of child endangerment, and that was the case against Msgr. Lynn, Williams said.

Hmm. Let's review. Bevilacqua was the guy who, according to a 2005 grand jury report, along with the late Cardinal John Krol, orchestrated a systemic cover-up of sexual abuse of children over four decades that shielded 63 pervert priests from prosecution, after they had raped, sodomized and molested hundreds of innocent children.

The grand jury at first believed that Bevilacqua and other church officials were “tragically incompetent at rooting out sexually abusive priests and removing them from the ministry." But after the grand jurors reviewed thousands of pages of secret archive files that contained the same “incompetent investigation techniques ... it became apparent ... that Msgr. Lynn was handling the cases precisely as his boss wished.”

The grand jury said that under Bevilacqua, a code of secrecy existed that managed to keep both parishioners and police in the dark. “Cardinal Bevilacqua had a strict policy, according to his aides, that forbid informing parishioners,” the report said. “The cardinal, in fact, encouraged that parishioners be misinformed.”

When Lynn plowed through 323 secret archive files in 1994 to compile a list of 35 abuser priests in active ministry, it was Cardinal Bevilacqua who ordered that list shredded. Can you say cover up?

Edward P. Cullen, bishop emeritus of Allentown, sat in on a high-level meeting with the cardinal to decide what to do with that list of 35 priests, according to trial testimony. And Joseph R. Cistone, bishop of Saginaw, Mich., witnessed the shredding.

But Seth Williams ducked questions about whether he should have or would in the future indict either bishop. The district attorney said he has to weigh the evidence to see whether charges would be brought against any "additional defendants."

Williams returned to his talking points, saying this "monumental case will change the way business is done in many institutions."

The prosecutor recalled one incident where a priest named Sylwester Wiejata confessed to Lynn that he had just molested a 13-year-old girl. The monsignor admitted when he testified to the grand jury that he didn't call the police, or try to do anything to determine the identity of the girl, or her parents.

I have three daughters, the district attorney said, tearing up. He said he would be mortified if one of his daughters was raped, and authorities "didn't tell me."

Ok, so he upgraded the crime from molestation to rape. But the DA was on a roll. The message had gone out that sex abuse would no longer be tolerated in Philadelphia. And as he sits in his jail cell tonight, the monsignor got that message, the district attorney said.

Yes, tonight, all the citizens of Philadelphia can breathe easier knowing the monsignor is no longer at large, thanks to the bottom feeders at the district attorney's office, and their cheerleader on the bench in Courtroom 304. The message is out there, if you're a kingpin of a criminal organization, make sure you and your top associates have an underling at the bottom of the organizational chart ready to take the fall.

A monumental verdict indeed.

Friday, June 22, 2012

Jury Returns Mixed Verdict

On the thirteenth day of deliberations, the jury finally reached a verdict in the Philadelphia priest abuse trial. Msgr. Lynn was found guilty on a single count of child endangerment, but he was acquitted on a conspiracy charge and a second child endangerment charge. The jury was deadlocked on the charges against Fr. James Brennan. 

More to come...

Thursday, June 21, 2012

If the Jury Remains Deadlocked, Should the D.A. Retry the Case?

With the jury off today, it's a good time to speculate about if the jury remains deadlocked, should District Attorney Seth Williams retry the case?

Will Spade, a former Philadelphia assistant district attorney who worked on the 2005 grand jury investigation of the Archdiocese of Philadelphia, says it's a no-brainer.

"I really do think they have to because it's such an important case and because they've staked so much on it," said Spade, now a defense lawyer. "To Seth's credit he's the first prosecutor in America to actually hold the Catholic hierarchy responsible for this stuff. I think there's too much riding on it, so they have to do it."

 Spade even volunteered to help the war effort.

"If the jury does hang or there's a less than completely successful verdict, I will volunter to go back to the D.A.'s office and help them out with this retrial," Spade said.

But Fred Tecce, a former federal prosecutor and TV commentator, said in the event of a deadlock, it might be a better to play let's make a deal. Prosecutors and defense lawyers should start talking about negotiating a deal where Msgr. William J. Lynn pleads guilty to a misdemeanor, or a probation offense, Tecce said. He doesn't think it's a smart move to retry the case.

"At that point you look like you're on a vendetta," Tecce said. "Sometimes, discretion is the better part of valor. And the problems that resulted in a hung jury don't go away in the second trial."

Tecce was still in shock over the judge's decision to add a couple of points to a set of instructions known as the Spencer charge, which basically requests that a deadlocked jury go back and take another crack at it.

In addition to the usual charge asking the jurors to reexamine their views, the judge noted Wednesday that if the jurors remained deadlocked, the case might have to be retried at considerable expense and inconvenience.

Tecce thought those remarks by the judge were out of line.

"It's a clear error of law," Tecce said. "There's a standard charge. In essence, the judge is trying to guilt and intimidate the jury into a verdict. That' s not good."

"There's a reason the woman who holds the scales of justices is blindfolded. because she's supposed to be blind to the issues of money and inconvenience," Tecce said. "They are never, ever, ever factors to be considered in a  criminal proceeding where the liberty of the accused is on the line as well as the Commonwealth's ability to represent the people."

The jury is scheduled to reconvene at 9:30 a.m. Friday. The judge gave the jury today off because she said one juror had "an important family event" to attend. It may be a good time for a cooling off period, after 12 days of deliberations.

But since the jury is not sequestered, it also means jurors may not be able to avoid overhearing media reports and water cooler commentary today on the deadlocked deliberations in the priest abuse trial. Despite the judge's daily instructions to tune out such diversions, you have to wonder what effect it may have on jurors when they gather Friday morning to decide whether they remain deadlocked, or whether their opinions can change.

Wednesday, June 20, 2012

Jurors Say They're Deadlocked; Judge Says Keep Deliberating

Shortly before noon, the jury in the Archdiocese of Philadelphia sex abuse case sent a note to Judge M. Teresa Sarmina, saying on their 12th day of deliberations, they were deadlocked on four of five counts.

"Please advise us of our next step," the note concluded.

The judge told the jury to continue deliberating. She offered her assistance to break the deadlock. The judge offered to read back her entire hour-long set of instructions to the jury, known as a charge, which covered the crimes the two defendants are accused of, as well as how to evaluate direct and circumstantial evidence, and the concept of reasonable doubt, among other legal topics.

The judge offered to do read backs on days of testimony regarding Mark Bukowski, the accuser of Father James J. Brennan, along with testimony from Bukowski's mother, and testimony from a former 10-year-old altar boy who was sexually abused by Father Edward V. Avery.

The offer of read backs on the testimony of the three witnesses was a complete reversal of Judge Sarmina's position of last week, when she told the jury she did not want to have days of testimony read back to the jury.  "I'm certainly not gonna have the whole trial re-read for them," the judge said as of last Tuesday. But on the day the jury announced it was deadlocked, the judge said that reading back three days of testimony was better than having to retry the entire case.

The jury must be getting used to a judge who changes her mind. Last week, Judge Sarmina told the jury on Thursday night that Msgr. William J. Lynn did not have to have criminal intent to be found guilty of conspiring to endanger the welfare of children. Then, the next morning, the judge told the jury that Lynn did have to have criminal intent to be found guilty of conspiring to endanger the welfare of children.

On Wednesday, the judge gave the jury Thursday off, because of "family matters," but she announced that jury deliberations would resume at 9:30 a.m. Friday.

The jury did not specify in their note which of the charges that they had reached a verdict on. Msgr. William J. Lynn is accused of one count of conspiring to endanger the welfare of children, and two counts of endangering the welfare of children. Father James J. Brennan is accused of one count of endangering the welfare of children, and one count of attempted rape.

The note to the judge said that the jurors were "firm on their votes" except for two jurors on one charge, meaning there was a 10-2 split. One of those jurors might change their mind after re-reading more evidence, the note said, but even if that juror flipped, the jury would still be deadlocked on that one charge, the note said.

Judge Sarmina gave the jurors a standard instruction known as a "Spencer charge," which basically says, go back and give it another shot. But then the judge gave the Spencer charge her own spin, telling the jury that if they couldn't reach a verdict, the case may have to be tried again, at considerable expense and inconvenience.

Alan J. Tauber, a defense lawyer for Msgr. Lynn, objected to the judge's mention of future re-trial as potentially coercive and irrelevant, but the judge didn't agree. Tauber asked the judge to just read the standard Spencer charge from the American Bar Association, but she declined.

The judge's freelancing on the Spencer charge set off defense attorney William J. Brennan, who represents Father James J. Brennan. William J. Brennan asked five times for a mistrial, but was denied each time by the judge.

William J. Brennan charged that the judge had improperly inserted herself into the deliberations. "That was not a Spencer charge, that was a Sarmina Spencer charge," defense attorney Brennan said. "You in effect made yourself the 13th juror."

But the judge overruled him.

When the jury filed back into the courtroom at 4 p.m. after they asked to be dismissed for the day, they looked tired. One juror was yawning, another stared straight ahead with his arms folded across his chest. Some jurors stared off blankly into space, while others watched the judge as she gave her standard instructions about not discussing the case with anybody, and not tuning in to the news media.

"Thank you and I'll see you Friday morning," the judge said.

Hung Jury - Time For The Dynamite Charge?

This guest post is by Beasley Firm attorney Max Kennerly, who regularly blogs at Litigation & Trial.

Eleven days into deliberations, the jury has told Judge Sarmina that they're hung on all but one of the counts. Now what?

That doesn't mean it's over, because the Court can still give what's informally known as a "dynamite" charge and try to move the jury to a verdict one way or the other. Under the century-old United States Supreme Court case, Allen v. United States, 164 U.S. 492 (1896), the Court may admonish the jury to keep trying, and can ask jurors to reconsider their positions. In Pennsylvania, the charge is known as a Spencer charge after the main case applying it here, Commonwealth v. Spencer, 442 Pa. 328, 275 A.2d 299 (1971), which incorporated American Bar Association standard 15-5.4. That standard says:

(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
(1) that in order to return a verdict, each juror must agree thereto;
(2) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
(3) that each juror must decide the case for himself or herself but only after an impartial consideration of the evidence with the other jurors;
(4) that in the course of deliberations, a juror should not hesitate to reexamine his or her own views and change an opinion if the juror is convinced it is erroneous; and
(5) that no juror should surrender his or her honest belief as to the weight or effect of the evidence solely because of the opinion of the other jurors, or for the mere purpose of returning a verdict.
(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in section (a). The court should not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.
The core concern in giving a Spencer instruction is to ensure the jury doesn't feel coerced by the court to reaching a verdict one way or another. The charge cannot, for example, "instruct the minority jurors to yield to the majority," nor instruct that "the majority [] need not re-examine their position." Commonwealth v. Schaffer, 2005 PA Super 14 (Pa. Super. Ct. 2005). The point of the charge is to make sure everyone has thoroughly considered the issues and so has reached a fully informed and honest belief as to the evidence.

We can expect Judge Sarmina to grant a Spencer charge here, perhaps after trying other options like further explaining certain legal issues, if she believes the jury might be stuck on their understanding of the jury instructions. By this point, though, the jury has probably heard enough about the law of child endangerment; they're likely stuck on factual interpretations, most likely Monsignor Lynn's state of mindThe defense lawyers will inevitably object to the Spencer charge, as would be proper to preserve their appeal options, but the charge will likely be given nonetheless as a last resort. 

Importantly, a hung jury does not necessarily benefit Monsignor Lynn. As the United States Supreme Court has repeatedly affirmed, most recently in Yeager v. United States, 129 S. Ct. 2360 (2009), the "double jeopardy" clause of the Constitution does not bar re-trial of a defendant where the prior trial ended in a hung jury:
[W]hile the defendant has an interest in avoiding multiple trials, the [Double Jeopardy] Clause does not prevent the Government from seeking to reprosecute. Despite the argument's textual appeal, we have held that the second trial does not place the defendant in jeopardy "twice." Richardson v. United States, 468 U.S. 317, 323, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984); see 3 J. Story, Commentaries on the Constitution § 1781, pp. 659-660 (1833). Instead, a jury's inability to reach a decision is the kind of "manifest necessity" that permits the declaration of a mistrial and the continuation of the initial jeopardy that commenced when the jury was first impaneled. See Arizona v. Washington, 434 U.S. 497, 505-506, 98 S.Ct. 824, 54 L.Ed.2d 717 (1978); United States v. Perez, 9 Wheat. 579, 580, 6 L.Ed. 165 (1824). The "interest in giving the prosecution one complete opportunity to convict those who have violated its laws" justifies treating the jury's inability to reach a verdict as a nonevent that does not bar retrial. Washington, 434 U.S. at 509, 98 S.Ct. 824.
Id. If it's a hung jury, the only question is if the Philadelphia District Attorney declines to re-try Monsignor Lynn. That's possible, but in my opinion unlikely.

Tuesday, June 19, 2012

Day 11 Without A Verdict As Rumors Abound About A Deadlocked Jury

Moments before she sent the jury home for the day, Judge M. Teresa Sarmina held a closed-door conference with lawyers in the case. What they talked about is not known, because there's a continuing gag order that's been in effect since early last year that prevents lawyers in the case from talking to the  media.

When the jury filed back into Courtroom 304 shortly after 4 p.m., they looked tired and frustrated. One jury member was seen rolling her eyes when the judge talked about returning Wednesday to resume deliberations for a 12th day, as in what's the use.

In the absence of any hard facts, a room full of reporters was left to subsist on persistent rumors of a deadlocked jury. Again, nobody in any official capacity, including the judge, the prosecutors, and the defense lawyers, had anything to say, but after 11 fruitless days of deliberation, it's a logical thought.

For the second consecutive day, the formerly inquisitive jury did not ask a single question, prompting more speculation that the jury has perhaps reached the point where they have exhausted seeking help from the judge through questions about the law and requests for more documents and trial transcripts.

Meanwhile, rumors percolated around the courtroom about the absence from the defense table of Allison S. Khaskelis, the youngest member of the team of lawyers representing Msgr. Lynn. Khaskelis was recently seen sporting a new diamond engagement ring, amid rumors that she was about to leave the country to elope. She was last seen at the courthouse bidding a tearful goodbye to Msgr. Lynn.

The jury is scheduled to return at 9:30 a.m. Wednesday. Stay tuned.. Khaskelis

Monday, June 18, 2012

Day 10 Without A Verdict

The jury in the Archdiocese of Philadelphia sex abuse trial deliberated for a tenth day Monday without reaching a verdict.

Judge M. Teresa Sarmina sent the jury home shortly after 4 p.m. They asked no questions. The jurors did not appear angry, as some reporters have previously noted, but they weren't smiling either as they were dismissed for the day.

Meanwhile, the bored press corps staking out Courtroom 304 was entertained by Pat Ciarrocchi of CBS 3 Eyewitness News. Ciarrocchi, employing her dramatic broadcast voice, read horoscopes from the Philadelphia Daily News for the court crier and several reporters on hand. Sadly, there were no predictions about any pending dramatic announcements.

Victims' advocates, however, who attend the trial daily, saw a silver lining. At least the jury wasn't telling the judge that they were deadlocked.

Outside the Criminal Justice Center, TV camera crews and news photographers chased Msgr. William J. Lynn, his lawyers, and Lynn's relatives down Filbert Street.

Just another day at the sex abuse trial. Jury deliberations are scheduled to resume at 9:30 a.m. Tuesday.

Saturday, June 16, 2012

What's Hanging The Jury?

Last week, the jury in the Archdiocese of Philadelphia sex abuse case asked lots of questions and requested to have days of trial testimony read back to them. The case appeared to be moving slowly in reverse.

Meanwhile, prosecutors in the Penn State case made their opening statement on Monday and then began presenting testimony from ten alleged victims representing 52 charges over 15 years. By Thursday, after just four days, the prosecution rested. On Monday, the defense in the Penn State is scheduled to begin its case. The verdict could be in by Friday.

But for long-suffering jurors in the archdiocese case, Monday will mark the tenth day of deliberations, and the 13th week of trial. If the archdiocese case was a TV show, it would be canceled by now. While the archdiocese case languishes, the Penn State trial has stolen all the headlines and media attention.

What's hanging the jury? A couple of veteran lawyers had differing ideas.

"I could never begin to speculate because I'm not there," said Dennis J. Cogan, a prominent Philadelphia defense attorney. "If I had to take a wild guess, there may be someone, or lots of someones [on the jury] who were revulsed by the way Msgr. William J. Lynn was treated on cross-examination."

From what Cogan read about the three-day cross, Assistant District Attorney Patrick Blessington was "being shrill and being a bully flexing his prosecutorial muscles," Cogan said. "The jury may be reacting to that for all I know."

Cogan said he was amazed that Blessington told "a really distinguished and fine man like [defense lawyer] Tom Bergstom to shut up and sit down." From that kind of language, "I can only imagine what the nuances of the cross examination were like," Cogan said. "I'm actually surprised that the judge would put up with him."

Fred Tecce, a former federal prosecutor and TV commentator, marveled at the efficiency of the Penn State prosecution. "That's the way it's done," he said.

As far as the archdiocese trial was concerned, it should be over by now, Tecce said. "They heard it the first time, and they can't reach a verdict," Tecce said of the jury. "That's reasonable doubt. That's the end of it."

As far as what's hanging the jury, Tecce's guess is that jurors were "appalled by what happened" to children in the archdiocese, "but the way the law's written and the way the case was charged, they're conflicted about holding Msgr. Lynn responsible for those atrocities."

The case may be taking its toll. The Philadelphia Inquirer reported that on Friday, the 12 jurors, "a generally upbeat group," "seemed solemn and tired and several appeared angry, faces scowling and arms crossed tightly across their chests."

What's hanging the jury? Here's a few more possibilities:

1. The burden of a long trial.

The prosecution in the archdiocese case could have presented its case in a week or two. The original three defendants were Msgr. William J. Lynn, the archdiocese's former secretary for clergy, and two priests allegedly under his supervision, Father Edward V. Avery and Father James J. Brennan. All three were originally charged with conspiring to endanger the welfare of children, with Avery charged with sexually abusing a 10-year-old altar boy, and Brennan with the attempted rape of a 14-year-old boy.

But the trial was complicated by the judge's decision to allow the prosecution to present the cases of 21 additional abuser priests, dating back to 1948, to show a pattern in how the archdiocese handled complaints of sex abuse against minors. Initially, the prosecution was gratified by the judge's decision, because it gave them a chance to put the Archdiocese of Philadelphia on trial for its treatment of children. How could the Commonwealth lose that case?

But by one defense lawyer's count, Thomas Bergstrom's, the prosecution spent 36 of 40 trial days presenting evidence regarding the 21 supplemental abuser priests. Maybe under that mountain of supplemental evidence, the real case against Lynn, Avery and Brennan got buried.

The requests for read backs of trial transcripts centered on days when evidence was presented against Avery and Brennan. Jurors asked for read backs on the testimony of the former victim of Avery, and the alleged victim of Brennan. The jury also sought a read back on the testimony of the mother of Brennan's accuser, as well as the testimony of a detective hired by the archdiocese who interviewed both Brennan and his accuser.

The judge told the jury she could not honor all their requests for read backs on days of trial transcripts. Instead, the judge said she would honor requests for read backs on excerpts of transcripts, to clear up any "sticking points" among jurors.

The first of those excerpts was read back Friday, testimony from Lynn's cross-examination regarding his supervision of Avery, who has already pleaded guilty.

Only one jury question has sought more documents about one of the 21 supplemental priests, Father Thomas J. Wisniewski. The documents the jury requested were about Lynn's supervision of the priest while he was undergoing psychological counseling and treatment for alcohol abuse.

2. The Brennan distraction.

Before the trial began, the defense sought to have Father James J. Brennan tried separately, but the judge turned down that request. Then, after the prosecution presented eight weeks of testimony, the judge threw out the conspiracy charge that linked Brennan to Msgr. Lynn, proving that Brennan really didn't belong at the defense table for this trial. If Brennan had been tried separately, it would have been over in two or three days.

During jury deliberations, many early questions centered on the Brennan case, as if the jury wanted to get that out of the way so they could concentrate on the Lynn case. The judge's charge requires the jury to find that Brennan not only endangered the welfare of the 14-year-old he is accused of attempting to rape, but also unnamed other children who were under Brennan's supervision. No evidence has been presented during the case to show that Brennan has a second abuse claim, so the jury may be having trouble with that. 

3. The "patsy" problem.

The problem with putting the Archdiocese of Philadelphia on trial is that according to the prosecution's storyline, Lynn is the one guy left holding the bag for the collective sins of the archdiocese's rampant sexual abuse of innocent minors, and the systemic cover-up of that abuse, dating back to 1948, as masterminded by Cardinals Bevilacqua and Krol. By allowing the prosecution to present evidence dating back to 1948, the judge was in effect holding Lynn responsible for events that took place up to 44 years before Lynn took office in 1992 as the secretary for clergy.

The prosecution in this case has worried from the start about whether the jury would regard Lynn as a patsy or fall guy. The remedy, of course, would have been for either one of two Philadelphia district attorneys to have indicted the late Cardinal Bevilacqua and charged him with conspiracy to endanger the welfare of children, along with his highest-ranking aides. But that would have required political courage.

In February 2012, the prosecution had another opening to solve the patsy problem. That month, the archdiocese turned over memos that showed that the late Cardinal Bevilacqua had ordered the shredding of a list of 35 abuser priests then in ministry compiled in 1994 by Msgr. Lynn. A handwritten note from the late Msgr. James E. Molloy described the cardinal ordering the shredding of the list, which was done by Molloy, and witnessed by Joseph R. Cistone, now bishop of Saginaw, Michigan.

The prosecution could have added Bishop Cistone to the case, charging him with conspiracy to endanger the welfare of children, and, say, obstruction of justice. Another high-ranking archdiocese official who could have been charged was Edward P. Cullen, formerly the number two man in the Philadelphia archdiocese, and now bishop emeritus of Allentown. According to archdiocese records, Cullen sat in on a meeting to discuss what to do with that list of 35 abuser priests, along with Cardinal Bevilacqua, Molloy and Lynn.

But District Attorney Seth Williams decided to give Cardinal Bevilacqua and his top aides a pass, leaving Lynn as the lone fall guy. Judge M. Teresa Sarmina has had a gag order imposed on the case since early 2011, so neither the DA nor the prosecutors can be asked any questions that they probably don't want to answer.

4. The judge's confusing rulings.

The latest example of this was last week, when the judge decided to reverse herself on the issue of whether Lynn had to have criminal intent when he allegedly entered into a conspiracy to endanger the welfare of children.

On Thursday afternoon, just before she sent the jury home for the day, the judge instructed the jury that Lynn did not have to have criminal intent to be found guilty of conspiracy.

On Friday morning, before the jury resumed deliberations, the judge instructed the jury that Lynn did have to have criminal intent to be found guilty of conspiracy.

If the judge is confused on the law this late in the case, who can blame the jury for being confused?

Friday, June 15, 2012

Judge Reverses Herself On Criminal Intent

Judge M. Teresa Sarmina began the day by reversing herself.

On Thursday, the judge instructed the jury that Monsignor William J. Lynn did not have to act with criminal intent in order to be found guilty of conspiring to endanger the welfare of children.

On Friday, the judge said that Msgr. Lynn did have to act with criminal intent in order to be found guilty of conspiring to endanger the welfare of children.

Confused? Obviously, so are the jurors, who finished their ninth day of deliberations without reaching a verdict.

On Friday, the judge gave a complicated set of jury instructions that laid out the conditions for finding Msgr. Lynn guilty of conspiring to endanger the welfare of children.

In order to find Lynn guilty, according to the judge, the jury would have to:

-- Find that the monsignor intended to promote or facilitate the committing of the crime of endangering the welfare of children.

-- Find that "Lynn intended to act jointly" with other conspirators so that "a crime would be committed," namely endangering the welfare of children.

-- Find that Lynn and other conspirators had to know that their conduct would result in the danger of harm to children.

The judge read her instructions so fast that reporters and lawyers in the courtroom had trouble following along. Let's face it, this stuff is complicated, and what an already confused jury of lay people made of the judge's hasty words and complete reversal remains to be seen.

The jury returned to their deliberations. During the day, they asked for ten defense exhibits, including a floor plan of the tenth floor, where Lynn's office for the clergy was located on, as well as a  letter Lynn sent to a sex abuse victim of Father Edward V. Avery.

The jury then asked for a read back of Lynn's cross-examination of May 29, when the monsignor was asked about the decision to give Father Avery a new assignment at St. Jerome's Church. It was in the sacristy of St. Jerome's where Avery subsequently abused a 10-year-old altar boy.

During the cross-examination, Lynn testified that it was Cardinal Bevilacqua's decision to place Avery at St. Jerome's, and also give him a residence in a rectory. On May 29, Assistant District Attorney Patrick Blessington questioned Lynn about the wisdom of allowing Father Avery to hear confessions of school children after the priest had been accused in 1992 of repeatedly fondling the genitals of a 12-year-old boy back in the late 1970s.

Lynn testified that the confessions were en masse, with 600 to 700 kids "coming over at once." The confessions were done publicly, in an assembly line, Lynn told the prosecutor.

Jury deliberations are scheduled to resume at 10 a.m. Monday.

Thursday, June 14, 2012

Judge's Ruling Sets Off Fireworks

It was another slow and foggy afternoon in Courtroom 304, as Judge M. Teresa Sarmina handled one question after another from an inquisitive panel of jurors.

Then, the jury in the Archdiocese of Philadelphia sex abuse case, now in their eighth day of deliberations, asked the judge this question: If the charge of EWOC -- endangering the welfare of children -- is the result of a criminal conspiracy, does it have to be the intent of a criminal conspiracy?

The judge said no, setting off a free-for-all among lawyers in the case, and a temper tantrum from a prosecutor while the judge just sat there and watched. 

The question that the jury asked could be pivotal to reaching a verdict in this trial, hence the late-afternoon fireworks in Courtroom 304.

Msgr. William J. Lynn, the former archdiocese secretary for clergy, is accused of conspiring to endanger the welfare of children by deliberately keeping Father Edward V. Avery in ministry, even though the priest in 1992 was accused of sex abuse, namely repeatedly fondling the genitals of a 12-year-old boy back in the late 1970s. 

Despite the allegations of abuse, Father Avery was given another assignment the following year, in 1993, at St. Jerome's parish. Later that same year, Father Avery performed oral sex in the church sacristy on a 10-year-old altar boy, and then forced the boy to perform oral sex on the priest.

Father Avery has pleaded guilty to involuntary deviant sexual intercourse with a minor, endangering the welfare of a child, and conspiring to endanger the welfare of a child. The jury, however, was never told that on the eve of trial Avery pleaded guilty, and received a sentence of 2 1/2 to 5 years in jail.

Lynn's defense team argued during trial that Lynn could not have foreseen that Father Avery would sexually abuse the 10-year-old altar boy because the priest had undergone a psychiatric evaluation and was diagnosed as not having a sexual disorder, but instead, a problem with alcohol. In response to the diagnosis, Lynn set up an aftercare program where Father Avery was undergoing weekly psychiatric counseling, as well as treatment from Alcoholics Anonymous.

So, in other words, if endangering the welfare of the 10-year-old altar boy was the result of a criminal conspiracy between Lynn and Avery, did it have to be the intent of the criminal conspiracy? 

The judge answered that question by saying that "intent does not have to be criminal in nature." That prompted objections from the normally placid Thomas Bergstrom, one of Lynn's defense lawyers. 

"It's got to be a knowing violation," Bergsrom insisted. Bergstrom told the judge, "We've taken criminal intent off the table" in a criminal trial, which he said was "really troubling to us" and a "mistake."

That set off Assistant District Attorney Patrick Blessington, who had been standing and waiting silently for Bergstrom to finish his objections. When Bergstrom interrupted Blessington, the prosecutor began yelling at Bergstrom to "sit down" and "shut up."

"I'm getting tired of these personal attacks," Bergstrom countered. But Blessington was so angry he couldn't stop yelling, as he argued that the defense lawyers in the case were continually abusing the legal process with last-minute, baseless objections.

Bergstrom and Alan Tauber, another defense lawyer, had raised their objections just as a court deputy was about to open a door to allow the jury back in the courtroom, so they could be dismissed for the day. Instead, the jurors had to wait while the lawyers duked it out.

"I've seen better manners in a barnyard," Blessington yelled at Bergstrom. 

"This court is right on the law," Blessington continued yelling. "He [Bergstrom] is wrong on the law," the prosecutor told the judge. "Make him shut up!"

The judge, however, said nothing during Blessington's rage. It was in marked contrast to how the judge usually handles William J. Brennan, the loudest defense lawyer. Brennan has received plenty of admonitions from the judge, as well as a $250 contempt-of-court fine.

As the jury has continued to deliberate without a verdict, and asked question after question, lawyers in the case have been getting tense.

Earlier, Blessington noted that "this is the third or fourth time" that the question of criminal intent has arisen regarding the charge of conspiracy to endanger the welfare of children. "Someone or a group of someones is hung up on this," the prosecutor said.

The jury does seem hung up on something. The joke making the rounds in the courtroom was that the jury hearing the Penn state pedophilia case would come back with a verdict before this jury did.

One local legal commentator on the dispute over criminal intent came down squarely on the side of the defense. 

"Every crime has to have an act and an intent to break the law," said Fred Tecce, a former federal prosecutor and TV commentator. "That's just Law School 101. And instructing a jury that you don't have to have intent to break the law, I don't think it's appropriate."

Earlier, the judge told the jury that she was not going to accommodate their requests for more read backs of testimony.

The jury had requested a read back of Mark Bukowski's two days of testimony. He's the alleged victim who claimed that in 1996, when he was 14, Father James J. Brennan attempted to rape him. The jury had also requested the testimony of Bukowski's mother, as well as the transcript of an interview with Bukowski done by Jack Rossiter, a former FBI agent who was investigating sex abuse allegations on behalf of the church. The jury also asked for the testimony of the former 10-year-old altar boy who had been sexually assaulted by Father Avery.

"You're not gonna have all that stuff read to you, let me start with the bottom line," the judge told the jury on Thursday morning, shortly after they had reported to the courtroom. The judge said she did not want to replay the entire trial, and that it was time for the jurors to rely on their own recollections of the testimony, and their impressions of the witnesses.

The judge said she would produce excerpts of testimony to clear up "some sticking points" among jurors. But when the jury retired to deliberate, they did not ask for any testimony excerpts from their original requests. Instead, they asked for five documents regarding Msgr. Lynn's handling of Father Thomas J. Wisniewski, who was accused in 1992 of sexually abusing a 15-year-old boy. The jury also asked for a report on the psychological evaluation of Father Avery.

The deliberations are scheduled to resume at 9:30 a.m. Friday. 


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