|The alleged victim|
A lawyer for convicted child rapist Bernard Shero is seeking a new trial based on "newly discovered evidence" of contradictory and false statements made by alleged victim "Billy Doe" to his many drug counselors.
Doe, now 25, is the former 10-year-old altar boy who claimed at two historic Philadelphia sex abuse trials that he was raped by two priests as well as Shero, a former Catholic school teacher. It was Doe's testimony that also sent Msgr. William J. Lynn to jail for 18 months before an appeals court overturned Lynn's conviction.
The "newly discovered evidence" surfaced during a civil case that Doe has filed against the Archdiocese of Philadelphia.
Doe, a former drug addict who used marijuana, magic mushrooms, pills, LSD and heroin, has been treated at 23 drug rehabs. He's also been arrested a half-dozen times, including one bust, subsequently dismissed, for possession with intent to distribute 56 bags of heroin. In the civil case, Billy Doe is seeking money from the archdiocese and a host of other defendants for alleged damage to his mental health. So a judge in the civil case has ordered the defendant's lawyers to turn over Billy Doe's medical records from his various drug rehabs.
What did defense lawyers discover when they got a look at those records? That Billy Doe, previously known for making wildly varying allegations to authorities, told his drug counselors four different stories in just one year about allegedly being abused. And none of those stories Billy told his drug counselors match the story he told two Philadelphia juries about being raped by two priests and a school teacher.
|The District Attorney's Star Witness|
Shero was convicted on Jan. 30, 2013 by a jury of rape of a child, involuntary deviate sexual intercourse with a child, endangering the welfare of a child, corruption of a minor, and indecent assault. The alleged victim of all that abuse was Billy Doe. On June 12, 2013, Judge Ellen Ceisler sentenced Shero to 8 to 16 years in prison.
In the 52-page brief, the most explosive new details are in the last few pages, where Rose made his request for a remand and a new trial, based on the newly discovered evidence contained in Doe's medical records.
It's amazing that we know anything about Billy Doe's medical records. Defense lawyers in the criminal case tried to get those medical records, but on July 29, 2011, Common Pleas Court Judge Lillian Ransom denied their request.
Defense lawyers in the civil case also tried to get those medical records. The Philadelphia district attorney's office, however, in an unusual move, sent a letter in support of a motion to stay the civil case of Billy Doe v. the Archdiocese of Philadelphia until the criminal case was over.
On Nov. 2, 2011, Common Pleas Court Judge William Manfredi complied by staying all discovery in the civil case until June 30, 2012. The underlying reason for the stay was that prosecutors didn't want any documents turned over in the civil case that might benefit defense attorneys in the criminal case.
Billy Doe was the district attorney's star witness at two criminal trials, which sent a monsignor, two priests and a Catholic school teacher to jail When the criminal cases ended, the stay in the civil case was lifted. A judge finally ordered Billy Doe's defense lawyers to turn over the medical records from the drug rehabs.
All the lawyers in the case, however, entered into a voluntary confidentiality stipulaton that threw a blanket of secrecy over the case. The court docket lists more than two dozen defense lawyers for the various defendants in the case.
You have to wonder why the defendants, particularly the archdiocese, agreed to any voluntary confidentiality stipulation when it appears that only the plaintiff, Mr. Doe, has anything to hide. Previously, a judge assigned to the Billy Doe civil case, Judge Sandra Mazer Moss, declined to impose a confidentiality order.
The lone holdout to the confidentiality stipulation was Bernard Shero, who, because he is broke, is representing himself in the civil case.
When Billy Doe's civil lawyers served discovery on Shero, namely Billy Doe's medical records, Shero was an inmate at SCI Houtzdale. Shero then turned those medical records over to Rose, who represents Shero in his criminal appeal, but doesn't represent anybody in the civil case.
No wonder the district attorney and Billy Doe's civil lawyers didn't want those medical records getting out. In his brief, Rose lists just seven statements Doe was quoted as making in the hundreds of pages of medical records:
Statement No. 2: On Nov. 21, 2005, Billy Doe told his drug counselors that his older brother "had been arrested for sexual assault."
Statement No. 3: A week later, on Nov. 28, 2005, Billy Doe told his drug counselors a second time that his brother had been arrested for sexual assault.
Statement No. 4: On March 5, 2007, Billy Doe "stated that he was molested at age 6, that he was the victim of sexual abuse by a neighbor, and that his brother was arrested for molestation."
For those of you keeping score at home, that was the third time in three years that Billy Doe had told his drug counselors that his older brother had been arrested for molestation.
The only problem, Rose explained in a footnote, was that Billy Doe's older brother "is an attorney and has never been arrested."
Statement No. 5: On March 21, 2007, Billy Doe, according to the medical records, "stated that he was abused by a 14 year-old family friend at age 9, and also by a teacher at age 11."
Statement No. 6: On June 20, 2007, Billy Doe "stated that he was sexually abused by a friend at age 6, and by a teacher at age 7."
Statement No. 7: On Nov. 19, 2007, Billy Doe "stated that he was sexually abused and raped in the 3rd, 4th and 6th grades."
Just 14 months later, on Jan. 30, 2009, Billy Doe called a sex abuse hotline to make his allegations against the church. The story that Billy Doe subsequently told two Philadelphia juries was that when he was a 10-year old altar boy in fifth grade at St. Jerome's parish school, he was raped by Father Charles Engelhardt and Father Edward Avery. Billy Doe further claimed that when he was an a 11-year-old altar boy in sixth grade, he was raped by Shero, his homeroom teacher who also taught him English.
So, going chronologically by age, and adding up all Billy Doe's various stories from the medical records and the criminal trials, over a period of less than two years Billy claimed he was: sexually abused at 6 by a friend; sexually abused at 7 by a teacher; sexually abused or raped at 8 by an unknown assailant; sexually abused or raped at 9 by an unknown assailant; sexually abused at 9 by a 14-year-old family friend; raped at 10 by a couple of priests; and raped at 11 by Shero his homeroom teacher.
Anybody detect a pattern here? If all his allegations are true, does Billy Doe belong in the Guinness book of world records for juvenile sex abuse victims? Is it any wonder that criminal defense lawyer Michael J. McGovern, who represented Father Charles Engelhardt, now doing 6 to 12 years, described Billy Doe as "a lying sack of shit?"
Rose "respectfully" [submitted] that the seven statements from the medical records "suggest that the testimony given by [Billy Doe] at ... trial was part of a fantasy of sexual abuse and a pattern of false statements made by [Billy Doe], perhaps to excuse his acts of bad behavior and criminal misconduct, including selling illegal drugs, a fact that he admitted to in his previously undisclosed statement of Nov. 29, 2011."
On Nov. 29, 2011, Billy Doe told an addiction medicine doctor he was unemployed and living with his parents. "When I asked him how he was supporting himself," the doctor wrote, "He very clearly told me that he was selling drugs and this is how he made a profit."
In his brief, Rose asks the Superior Court to remand the case back to Common Pleas Court for a new trial, "so that the interests of fundamental fairness and justice will be served."
The newly discovered evidence "involve a further attack on [Billy Doe's] credibility and the new information could produce an acquittal at a new trial," Rose argues to the Superior Court. "If the goal is to find justice, then the nature and quality of statements on the part of [Billy Doe] ... would justify a new trial."
In a footnote, Rose writes that Billy Doe's "statements to counselors and treatment officers at drug rehabs and other venues would be admissible at a new trial since he has chosen to pursue a claim for damages to his mental health as part of his present civil lawsuit ... thereby waiving any privilege of confidentiality."
The medical records are expected to be the battleground in the civil case. Expect defense lawyers to have a field day. Besides lying about his older brother being arrested, Billy Doe also told his drug counselors he was a paramedic and a professional surfer, and that he used to weigh 220 pounds.
According to the medical records, at the time he made the claim to have formerly been a heavyweight, Billy Doe weighed 148 pounds. State health department records also do not list Billy Doe on the list of active Emergency Medical Service practitioners nor practitioners who have been disciplined.
Sadly, the proceedings in the civil case will not be televised. The various defendants in the case, as well as Doe and his parents, will be deposed in law offices around the city, and the transcripts and videotapes of those depositions, sadly, kept under seal.
If the archdiocese decides to settle the case, nothing about the proceedings may ever be known.
Once again, you have to question why the various defense lawyers in the civil case would agree to a confidentiality stipulation that will keep the proceedings under a cloak of darkness. Isn't this how we got here in the first place, with the district attorney's entire farce of a "historical" investigation of the church, complete with secret grand jury proceedings, years of gag orders, and sealed pretrial motions and hearings?
Isn't this whole tawdry process due for a megadose of sunlight?
Most of the pages of Rose's brief are devoted to his grounds for an appeal of Shero's criminal convictions. Rose argues that Judge Ceisler abused her discretion by allowing several witnesses to testify about Shero's alleged "inappropriate behavior with other school children."
"This evidence was not admissible to respond to an attempt by [Shero] to portray himself as a hapless and nonviolent victim of aggressive students," Rose wrote. Instead, after several prosecution witnesses got through testifying about the nearly blind Shero's propensity for getting too close to school kids, Shero came across like "a kind of sinister authority figure whose character was such that he had no regard for boundaries between a teacher and a student," Rose wrote.
Boundary violations "had nothing to do" with the violent sexual abuse that Shero was accused of, Rose wrote.
Rose faulted Judge Ceisler for allowing Dr. Gerard Magiotti to testify about testicular pain in young Billy Doe as being consistant with a child who had been sexually abused.
Dr. Margiotti was Billy Doe's pediatrician, but his opinion did not constitute expert medical testimony, Rose argued in his brief. At trial, Dr. Margiotti testified that he did not see or treat Billy Doe when the boy complained about testicular pain. But the judge allowed the prosecutor to ask Margiotti if Billy Doe's testicular pain was "consistent with sexual abuse."
Rose objected, but Judge Ceisler overruled him. Dr. Margiotti answered yes, testicular pain was consistent with sex abuse. In his closing statement, Assistant District Attorney Mark Cipolletti then referred to Billy's testicular pain as a "silent witness" that let the jury know that [Billy Doe] "could not have made this up."
Rose also faulted Judge Ceisler for overruling defense objections to false statements made by Cipolletti in his closing statement.
Billy Doe had told the jury that Shero raped him in the back seat of his car one afternoon in the Spring of 2000, after Shero allegedly offered to drive Doe home from school. At trial, Rose introduced Billy Doe's grand jury testimony, where Doe said he got sick after he was raped by Shero, and missed a lot of time at school.
But Billy Doe's report card for the fourth marking period showed he did not miss a day of school. Indeed, according to school records, Doe showed up for the school the day after the alleged brutal back-seat rape by Shero.
During his closing statement, however, Cipolletti twice told the jury that although the defense claimed that Billy Doe's report card showed that Billy didn't miss any time in the fourth marking period, Billy Doe's actual report card showed he had missed three and a half days.
Rose and McGovern moved for mistrials on behalf of their clients, Shero and Engelhardt, but Judge Ceisler denied the motion.
Rose also claimed as prosecutorial misconduct prosecutor Cipolletti's statements during his closing argument about why no other victims had come forward to charge Shero or Engelhardt with sex abuse.
Cipolletti asked the jury to notice how carefully defense lawyer McGovern had chosen his words in
|Billy Doe [right] In The Driver's Seat|
"Obviously, what he [McGovern] didn't tell you was no child, no student has come forward yet," Cipoletti told the jury while Billy Doe was making a spectacle of himself by sobbing in the courtroom. "No child, no student has had the courage that [Billy Doe] has because what he did takes guts," the prosecutor told the jury.
Rose also objected to the judge allowing the prosecutor to question Ed Avery about other alleged victims of sex abuse. Avery, an original co-defendant with Msgr. Lynn, pleaded guilty on the eve of trial to raping Billy Doe.
When the prosecution hauled him back into court in a prison jumpsuit for the Engelhardt-Shero case, Avery stunned courtroom observers by recanting his guilty plea. Avery told the prosecutor he had lied to take a plea bargain because he didn't want to die in jail. The real story was that he never even met Billy Doe, Avery testified.
At the time he took the plea bargain, the 69-year-old former priest was looking at a maximum possible sentence of 13 1/2 to 27 years in prison. After he pleaded guilty to involuntary deviate sexual intercourse with a child, and conspiracy with Lynn and others to endanger the welfare of a child, Avery got a sweetheart deal of 2 1/2 to 5 years.
Lynn became the first Catholic administrator in the country to be convicted and sent to jail for failing to adequately supervise a sexually abusive priest. On June 22, 2012, a jury convicted him on one count of endangering the welfare of a child, namely Billy Doe. Lynn was serving a 3 to 6 year prison term when the state Superior Court on Dec. 26, 2013, reversed Lynn's conviction. A panel of Superior Court judges said said the state's child endangerment law that the district attorney had used to indict Lynn on did not apply to the monsignor.
It was more prosecutorial misconduct, Rose argued in his brief, when the judge in the Engelhardt-Shero case allowed Cipolletti to question Avery about his "other five known victims." Cipolletti in his closing argument referred to Avery as "a seasoned pro" who was able to see that Billy Doe "would make a perfect victim," Rose recounts in his brief. To the defense lawyer, it was more evidence of prosecutorial misconduct tolerated by Judge Ceisler.