|Judge M. Teresa Sarmina|
During the trial last year of Msgr. William J. Lynn, Assistant District Attorney Patrick Blessington advised the jury to pay attention to the judge's instructions, and to not be swayed by Lynn's "very skillful, very crafty, very well paid defense attorneys."
Blessington's comments, as well as the judge's absence of admonishment, are among the more colorful issues being argued in more than 300 pages of appeals court documents filed in Superior Court.
On April 12, Judge M. Teresa Sarmina filed a 235-page opinion, defending her handling of the 13-week trial that resulted in the June 22, 2012 conviction of Msgr. Lynn on one count of endangering the welfare of a child. The monsignor is now serving a three-to-six year prison term imposed by Judge Sarmina.
In her opinion, Judge Sarmina defended the rhetorical excesses of the prosecutor, as well as her decision to allow into the Lynn case 21 supplemental cases of previous sex abuse, dating back to 1948, three years before Lynn was born, to show a pattern of bad behavior in the Archdiocese of Philadelphia.
"The admissibility of evidence is within the sound discretion of the trial court," Judge Sarmina writes. "Evidence of 'other crimes, wrongs, or acts,' which is offered for a relavant purpose other than criminal character/propensity, is admissible so long as the probative value of such evidence outweighs its potential for prejudice."
While defense lawyers had claimed the judge abused her powers of discretion, Judge Sarmina said she let in the 21 supplemental cases so that the jury could get a look inside Lynn's head.
"In order for the jury to have returned a verdict on the EWOC [endangering the welfare of a child] and conspiracy charges against the defendant, the jury needed to gain insight into what the defendant knew and what he intended when he supervised Avery," the judge wrote. "This evidence, which was highly probative of the defendant's knowledge, motive and intent, outweighed its potential for prejudice."
The judge used the outcome of the case to back her argument that she didn't get carried away.
"Additionally, the fact that the jury acquitted the defendant on two of the three charges against him is an indication that the evidence did not stir such passion in the jury as to sweep them beyond a rational consideration of guilt or innocence," the judge wrote.
On April 26th, defense lawyers Thomas A. Bergstrom and Allison Khaskelis filed a 16-page supplemental brief, on top of their original 71-page appeal on April 16th, to refute what the judge had to say in her 235-page opinion.
"The lower court devotes 160 pages of her opinion in an effort to justify the admission ... of criminal and immoral acts of 21 other priests, which the lower court claims shed light on [Lynn]'s knowledge, motive and intent when he supervised [Father Edward V.] Avery," the defense lawyers write.
"Not only did the jury have to listen for 25 days to this parade of horribles, but this court is now faced with the same poison," the defense lawyers wrote. "It was not admissible or relevant then, and hopefully, will not distract this Court from the serious issues which need to be resolved."
The defense lawyers say the 21 supplemental cases, which took up the vast majority of the trial, didn't have much to do with the guilt or innocence of the specific crimes Msgr. Lynn was charged with, and shouldn't have been allowed in as evidence.
"The jury was faced not with crimes or bad acts of [Lynn] but multiple acts of abuse by 21 other priests," the defense lawyers write. The judge also didn't share with the jury her desire to have the 21 cases provide telling insights about Lynn.
"At no point did the trial court supply a concrete instruction that provided the jury with guidance as how to properly use the information about each specific abusive priest," the defense lawyers write. "Instead, this jury was faced with a wholesale dump of disgusting conduct by other priests over the course of 50 years which had absolutely no connection or relevance to [Lynn's] involvement in the assignment of a single priest, Father Edward Avery, to Nazareth Hospital, with residence at St. Jerome's rectory, in late 1993."
"The jurors were left to their own devices in determining how to make sense of this highly inflammatory and prejucidical information, guided by only a general and uninformative instruction provided by the trial court," the defense writes.
Regarding Blessington, the defense in their original appeal had criticized the lead prosecutor for making "vitriolic, highly inflammatory, unsupported, and unprofessional" statements that supposedly deprived the monsignor of a fair trial.
The judge didn't buy it.
"This claim is without merit," Judge Sarmina writes. She cites a case, Commonwealth v. Chmiel, that said "prosecutorial misconduct will not be found where comments were based on the evidence or proper references ... or were only oratorical flair."
In her opinion, Judge Sarmina addressed defense objections about Blessington's labeling of Lynn and his defense team as "liars," and Blessington's characterization about the behavior of Lynn's lawyers as being "shameful" and "ridiculous."
Truth is a defense, the judge argues.
"The Commonwealth presented evidence of a handful of instances in which [Lynn] lied in an effort to proetect the reputation of priests within the Archdiocese," the judge wrote. In addition, the "Commonwealth presented evidence that the defendant was willing to lie to protect himself."
Blessington's comments about the defense lawyers were no big deal, Sarmina argues.
"A careful review of the record reveals that Assistant District Attorney Blessington did not directly refer to the defendant's attorneys as 'liars,'" the judge wrote.
As proof, the judge quotes what Blessington actually said. At the time, Blessington was trying to refute a defense argument that the prosecution was unfairly holding Msgr. Lynn responsible for not getting rid of predator priests, when only Cardinal Bevilacqua had that kind of power:
"The argument was just so short on evidence, but it was real long ... on deception," Blessington told the jury. "Ladies and gentlemen, I submit to you when you listen to Her Honor's instruction on law, you are going to find that it is a blatant attempt to deceive you and misrepresent what the law is."
Judge Sarmina didn't see a problem.
"A prosecutor's argument that defense counsel attempted to fool the jury is not the type of statement that rises to the level of prosecutorial misconduct," Judge Sarmina wrote. In addition, "a mere reference to the fact that an attorney is well paid for his services does not have the "unvavoidable effect" of prejudicing a jury.
"Very well paid attorneys "is not the type of statement that would cloud the jury's ability to weigh the evidence and objectively return a verdict," Sarmina wrote. In her opinion, the judge declares that the defense claim that Blessington's rhetoric deprived Lynn of a fair trial was "without merit.
On page 18 of Judge Sarminia's opinion, it says, "Just before the spring of 1999, [Billy Doe] encountered Avery inside the church on a Friday afternoon while [Billy Doe] was doing bell maintenance, part of his duties as an altar server. Avery pulled the boy aside and told him "that he heard about my 'sessions' with Father Engelhardt and that ours were going to begin soon."
Detectives were told by the church's longtime music director and one of Billy Doe's former teachers that Billy Doe did not serve as a member of the bell maintenance crew in fifth grade. Only eighth grade boys were big and strong enough to lift the heavy bells and other equipment, the music director and the teacher told detectives.
As to where Judge Sarmina got the idea that putting away the bells was part of an altar boy's duties, I have no clue.
The judge also mentions the code word of "sessions" supposedly used by Father Avery and Father Charles Engelhardt to describe sex with Billy Doe, as alleged in the 2011 grand jury report. Both priests told their lawyers they never heard of the word sessions and didn't know what Billy Doe was talking about. As mentioned previously on this blog, detectives discovered a far more plausible explanation for sessions when, a year after the grand jury report came out, they interviewed one of Billy Doe's former drug counselors, and he told the detectives that "sessions" was used at the drug rehab to describe Billy Doe's "group sessions" and "one-on-one sessions."
In court documents, the judge and defense lawyers also spar over Judge Sarmina's decision to raise the ante if the defense was going to cross-examine Billy Doe at the Lynn trial.
"The trial court erred and abused its discretion and denied [Lynn] his right" to confront his accuser, the defense argued, by compelling the defendant to forego the cross-examination of [Billy Doe]."
The risk the defense was worried about was Judge Sarmina's suggestion that she would allow the prosecution to drag Avery back into court after his guilty plea, presumably wearing a jumpsuit. The defense was worried about the effect that would have on a jury.
On the eve of the Lynn trial last year, Avery, Lynn's codefendant, pleaded guilty to involuntary deviate sexual intercourse with a minor, and conspiring with Msgr. Lynn to endanger the welfare of a child. The jury was never told why Avery disappeared from the defense table.
"The defendant argues that this Court violated his right [to confront his accuser] ... by compelling him to forgo cross-examination of [Billy Doe] because of the possibility that Avery's guilty plea would be introduced in rebuttal," the judge wrote. "This claim is without merit."
To prove her point, the judge quoted this portion of the trial transcript:
Judge Sarmina: "And so it's very possible that, depending, on your cross-examination, that I may allow the [Avery guilty] plea. .. And it may very well be that I order the Commonweath to have defendant or now convicted felon Avery be brought in to be cross-examined. So that there's no cross-examination issue. So I don't know which way I'll go."
Defense Attorney Bergstrom: "How will I know? Will like a light go on or something?"
Judge: "I want you to represent your client zealously."
Bergstrom: "If I'm getting too close out, look out?"
Judge Sarmina: "I want you to represent your client zealously as you have done ... And it may very well be that, in light of all that, that I tell the Commonwealth that if they want to bring that into evidence, that then they'll have to actually bring Avery in and present his -- he might be asked two questions, you know. Did you enter a guilty plea to molesting [Billy Doe]? Yes or no?"
The judge has been criticized for not asking Avery when he pleaded guilty whether he actually did the deed. At least she's consistent.
At the second archdiocese sex abuse trial, where Father Charles Engelhardt and Bernard Shero were tried and found guilty of raping Billy Doe, the prosecution did bring Avery in as a witness.
And Avery, of course, told the prosecutor he didn't touch Billy Doe, he only agreed to plead guilty to something he didn't do because he was 69 years old, and looking at a sentence of more than 20 years in jail. Instead, Avery got a sweetheart deal from the prosecution, pleading guilty and he's now serving a prison term of 2 1/2 to 5 years.
Ultimately, the defense lawyers in the Lynn case, to their everlasting regret, decided not to cross-examine Billy Doe.
Don't blame me for your strategic decisions, Judge Sarmina says.
"The fact that cross-examining [Billy Doe] in a fashion that insinuated that [Billy Doe] had fabricated his sexual assault by Avery might have 'opened the door' to evidence that Avery had admitted to sexually abusing [Billy Doe] does not convert counsel's strategic decision into something that was compelled by this court," the judge wrote. "The defendant's lawyers chose not to cross-examine [Billy Doe], and therefore, this court never had to rule on this issue."
In their supplemental brief, the defense lawyers take Judge Sarmina to task for not addressing their argument that Lynn was unfairly charged with endangering the welfare of a child [EWOC] under an old state law that did not apply to him.
Lynn actually has a compelling argument here.
In 2005, then District Attorney Lynne Abraham and a previous grand jury looked at the existing EWOC law and declared that it didn't apply to Msgr. Lynn or Cardinal Bevilacqua, or any other member of the archdiocese hierarchy. Instead, the law applied to those who had direct contact with children, such as parents, guardians and teachers, the grand jury said in its 2005 report.
The district attorney then campaigned for a new EWOC law that included supervisors who oversaw those in direct contact with children. During their campaign to pass the new law, the district attorney's office admitted that if the law was changed, nothing could be done retroactively to indict archdiocese officials such as Lynn.
And then a new district attorney, Seth Williams took office. The new D.A. and a new grand jury looked at the same old EWOC law in 2011 and decided it did apply to Msgr. Lynn.
Maybe some day an appeals court will rule on this issue. The district attorney has never explained the reason for this official flip-flop. And Judge Sarmina, despite the repeated pleas of the defense, never showed any interest in seeking any official explanation.
The defense was also upset that in her brief, Judge Sarmina stated as a fact that Lynn had "petitioned Cardinal Bevilacqua to allow [Father Ed] Avery to live at St. Jerome's."
Lynn "merely indicated to the cardinal in a memorandum that Avery had expressed a preference for living at a rectory," the defense lawyers wrote. Lynn "simply served as a conduit of information between Avery and Cardinal Bevilacqua. The record is devoid of any indication that [Lynn] expressed any personal preference or plea to the cardinal on this matter."
The defense lawyers in their supplemental brief, also say that Judge Sarmina misleadingly argued that Lynn was knowledgeable about "grooming" behavior of predator priests such as Avery.
"The trial court misleadingly devotes much attention to [Lynn's] knowledge of the tendency of abusive priests in general and Avery in particular to 'groom' their victims," the defense lawyers write. "In fact, the trial court argues that [Billy Doe] and other unnamed minors were forseeable victims of Avery's, because of Avery's propensity to 'groom.'"
"Signficiantly, the trial court fails to clarify that [Billy Doe] was not 'groomed,' the defense lawyers write. "During his April 25, 2012, trial tesimony, [Billy Doe] recounted a story of a violent and random attack by a priest [Avery] he barely knew. Avery certainly never befriended [Billy Doe]'s family or developed a connection to [Billy Doe] over a period of years as had been the case with" previous victims.
"At no point did the Commonwealth provide any evidence, by way of an expert or otherwise, to meet its burden of proving that [Billy Doe]'s escalating attack was foreseeable," the defense lawyers write. "The trial court's description of this information is, most generously, an overeach from the evidence actually presented at trial."