Thursday, May 21, 2015

Lynn's Lawyer Seeks Return Visit to Superior Court Panel; District Attorney Objects, Claims It's "Judge-Shopping"

By Ralph Cipriano
for Bigtrial.net

Thomas A. Bergstrom, the defense lawyer for Msgr. William J. Lynn, is seeking a return visit before a panel of three state Superior Court judges who previously ruled that his client should get out of jail immediately.

Bergstrom also is seeking permission to brief that Superior Court panel on other appeal issues that the defense lawyer hopes will get his client a new trial.

In response, top appeal lawyers for District Attorney R. Seth Williams argued that Bergstrom was "judge-shopping." Furthermore, the D.A. asserted that the state Superior Court panel of judges that previously ruled on the Lynn case had made a "material misrepresentation of the law." Because of that material misrepresentation, the district attorney argued in his brief, it would constitute an "appearance of impropriety" if the same panel were allowed to rehear the case.

On Wednesday, Bergstrom filed a reply brief that claimed the D.A.'s accusation of judge-shopping was "unfounded and insulting." Regarding the alleged material misrepresentation of the law, Bergstrom wrote that the charge was "disturbing." He argued that the Superior Court panel of judges was best-suited to rehear the Lynn case because they are already familiar with it.

Msgr. Lynn is the former secretary for clergy for the Archdiocese of Philadelphia who was convicted three years ago by a jury on one count of endangering the welfare of a child [EWOC].

On July 24, 2012, Common Pleas Court Judge M. Teresa Sarmina sentenced Lynn to three to six years in jail.

Lynn had served 18 months of his sentence when on Dec. 26, 2013 a panel of three state Superior Court judges -- John T. Bender, Christine L. Donohue and John L. Musmanno -- reversed the monsignor's conviction and ordered him "released forthwith." But Judge Sarmina didn't agree, and instead imposed conditions on the defendant that amounted to house arrest.

Lynn had spent 16 months under house arrest until April 27th, when the state Supreme Court reversed the reversal by the Superior Court. Three days later, Judge Sarmina granted a motion by the D.A.'s office to revoke bail and send Lynn back to jail to serve out the remainder of his sentence.

Bergstrom filed a motion seeking a return before the same panel of state Superior Court judges, so the panel could rule on other appeal issues in the case.

On May 15th, Ronald Eisenberg, deputy of the law division of the D.A.'s office, and Hugh J. Burns Jr., chief of the D.A.'s appeals unit, filed a 9-page answer to the defense petition that opposed a return visit to that same panel of state Superior Court judges.

Lynn was convicted under the state's original child endangerment law that says, "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 a child by violating a duty of care, protection or support."

The state Superior Court reversed Lynn's conviction because the court found Lynn did not have "any direct supervisory role over" the victim, the district attorney wrote. In rendering their decision, the Superior Court panel "heavily relied" on a previous 1998 case, Commonwealth v. Halye, which held that the "true meaning" of "supervising the welfare of a a child" was "not supervision of children's welfare but 'actual' or 'direct' supervision of children," the district attorney wrote.

The Superior Court also took "the highly unusual step" of declaring that Lynn was "ordered discharged forthwith."

"The original panel's decision is the one and only published Pennsylvania appellate decision, that, in granting relief on the basis of insufficient evidence, ordered the appellant 'discharged forthwith,' " the district attorney wrote.

The state Supreme Court found that the Superior Court panel had misstated the meaning of the Halye case, the district attorney wrote.

"This is a high profile case," the district attorney wrote, so avoiding the appearance of impropriety is a "particularly acute consideration."

"In that regard the appearance that defendant is judge shopping should be avoided," the district attorney wrote.

In their brief, the district attorney said that Superior Court panel had claimed as "unmistakable" a Superior Court ruling that "simply does not exist." That mistake does not constitute a "mere error of law, but a material representation of the law," the district attorney wrote. "Such conduct creates an appearance of impropriety."

"The appropriate exercise of discretion is to assign this case on remand to a different panel," the district attorney concluded.

In a second brief of 12 pages filed May 18th, the district attorney opposed Bergstrom's motion to file an additional briefing with the state Superior Court.

"This argument not only disregards the final and controlling decision of the Surpme Court that the evidence is sufficient, it mischaracterizes that [Supreme] Court's opinion as if it somehow invited further litigation of this settled issue," the district attorney wrote.  Bergstrom's "latest legal gyration . . . should be rejected," the district attorney wrote.

On May 20th, Bergstrom filed a 5-page reply in support of his previous motions to return before the state Superior Court panel, and be allowed an additional briefing.

Instead of engaging in judge shopping, Bergstrom argued, his motivation was to seek a decision on the appeal issues in the case as soon as possible. Especially now that his client is back in jail.

"The original panel is clearly familiar with this long, complicated case and thus would be in the best position to reach a decision in the most expeditious manner," Bergstrom wrote.

"The Commonwealth also alleges impropriety based upon the original Panel's alleged 'material misrepresentation of the law,'" Bergstrom wrote. "This disturbing accusation is not supported by either the facts or the law."

Bergstrom in his brief pointed out that at the opinion arrived at by the three Superior Court judges was the same opinion stated by Chief Justice Saylor of the Supreme Court in a dissent.

"Differences of opinion among judges happen constantly, and rarely amount to a 'material misrepresentation of the law,' " Bergstrom wrote.

In their opinion, the state Supreme Court ruled that under the law, Lynn was considered an "other person supervising the welfare of a child."  

"In other words, the supreme court decided the very narrow issue of whether ... Msgr. Lynn, could be a supervisor who could, therefore, be convicted of EWOC, and determined that he could," Bergstrom wrote. "What the Supreme Court did not decide was whether the 'Commonwealth's evidence sufficed to prove that [Lynn] was aware of his duty of care, protection or support [whether] he violated this duty or [whether] he knowingly endangered the welfare of a child, because, again, these questions are beyond our grant of allowance of appeal."

"None of those elements of EWOC were before the Supreme Court, but they are directly before" the Superior Court on appeal, Bergstrom wrote. So an "additional briefing would assist this Court by further exploring those additional elements of the crime of EWOC."

26 comments:

  1. Hahaha. Simply comical. Next Bergstrom will ask the governor for a reprieve for Lynn.

    ReplyDelete
  2. "This is a high profile case," the district attorney wrote, so avoiding the appearance of impropriety is a "particularly acute consideration."

    Now, if anyone is interested in ‘improprieties’ beyond the 'intellectually dishonest Grand Jury report - that is, you might want to read on:

    Shero / Engelhardt trial attendees mentioned that a nattily clad individual with a flower in his lapel was present during the trial. He supposedly greeted the lawyers, the potential jurors and the attendees and would occasionally disappear in the direction of the judge’s chambers.

    This (now deceased) individual’s name is Anthony DeFino. According to an on-line excerpt (below) of Philadelphia Magazine (The Charges Against District Attorney Seth Williams) –

    • http://www.phillymag.com/articles/charges-district-attorney-seth-williams/

    ‘There have been half a dozen other hires as well—most of them political associates of Williams’—that have enraged veteran prosecutors. Retired judge Anthony DeFino, a longtime financial and political backer of Williams, is supposed to improve relations between the D.A.’s office and the bench…..DeFino gets paid $55 an hour as a contract employee’.

    If this doesn’t smack of an impropriety (or worse), I don’t know what does. Here we have a retired judge on the DA’s payroll ‘improving relations with the bench’. Does this mean that DeFino – who apparently had unfettered access to Ceisler’s chambers – ‘helped’ the relatively new judge with difficult rulings that benefited the prosecution and – by extension – Seth Williams’ career?

    Seth is showing his increasing concern that his 'historic conviction' will morph into a Lynn retrial at which Billy Doe, Leo Hernandez and others will be expected to testify.

    Hopefully, this will happen before the August civil trial.

    ReplyDelete
    Replies
    1. Only if a new judge is chosen to replace Sarmina, the trial is held OUTSIDE Philadelphia in either Bucks, Montgomery and Chester counties. And the case is strictly confined to determining whether or not the Child Endangerment Act applies to Lynn and that is the 1972 version, not the version created AFTER Lynn left his position. No testimony by perjurers Billy Doe and Leo Hernandez and the long line of people claiming abuse by priests, including those BEFORE Lynn assumed the position.

      And Lynn will be FREED on bail with NO monitoring device affixed to his ankle and the usual restriction imposed on people freed on bail such as passport surrender, not to travel outside Pennsylvania without permission of a judge and to keep the parole officer aware to his or her whereabouts.

      The only one to wear Lynn's ankle monitor will be Judge Sarmina and this will affect her ability to go to the bathroom without setting off the alarm. Teach her a profound lesson.

      Once those parameters clearly specified to both the prosecution and defense, DA Seth Williams will chuck it by throwing in the towel.

      Delete
    2. Time served is probably the best deposition of the case with no winners among the prosecution and the defense than to engage in a pointless trial to sate the DA and his minions' arrogant ego. A smart man leaves quietly when he is ahead.

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    3. my opinion, you still need one of those detectives, retired or not, to step forward to speak about the manner in which this totally flawed investigation of danny Gallagher's bogus allegations were handled, those lies have done nothing but destroy several innocent men's lives including Lynn's. doubt it will happen but there are people who would rather remain silent about this travesty than "man-up" and speak about the DA's actions and the actions of those who worked in concert with him, including Judges Sarmina and Ceisler to make certain those convictions were going to happen

      and yes, the now deceased ex-Judge Defino had access to Judge Ceisler chambers repeatedly during the Engelhardt/Shero trial.....hey but look on the bright side, now there's one less crony of Williams on the bloated DA's payroll, but that was a hell of a way to go out (house fire in case you don't read any of the Philly rags, Inquirer or Daily News)

      ....we need a couple more to follow in the interest of justice for those innocent men who were wrongly convicted based on the lies of one, Danny Gallagher..........

      I wish Lynn and his defense team nothing but success in their efforts to free their client.......

      Delete
    4. @anonymous 10:53 - yes, I read about his death in a home fire. Karma?

      I wonder if DeFino happened to make it into the jury deliberating room?

      Delete
  3. Better idea, exchange Lynn for DA Seth Williams who will happily serve out the balance of Lynn's term.

    ReplyDelete
  4. Bergstrom said it well - EWOC was not considered at all by the State Supreme Court and that is like a student ignoring the rules promulgated by the teacher in the writing of a term paper. EWOC's and its misapplication was clearly stated in the appeal by Bergstrom and this consideration is what the State Supreme Court should have answered, not ignored.

    Most likely scenario, Superior court will ignore the DA's desperate missives to grant Lynn a new trial with hopefully restrictions aimed at preventing the DA from introducing irrelevant materials in the case. Hopefully, this will include the removal of Judge Sarmina from the trial docket and the case to be assigned to a retired justice who will give it its due attention that Sarmina did not do so.

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    1. @anonymous 11:07

      I disagree somewhat with your last comment.....You can bet your bottom dollar that Sarmina gave her FULL and UNDIVIDED ATTENTION to this particular 'historic' trial, as:

      - it was rumored that she lobbied for the case. She wanted to show that she was tough on crime and thereby a suitable candidate for either the Superior or Supreme Courts (she failed miserably...her true colors came out),

      - she made her anti-AD bias evident by her comment during the juror vetting process - "Anybody that doesn’t think there is widespread sexual abuse within the Catholic Church is living on another planet.”

      - she refused to recuse herself after this revealing remark,

      - she was often mistaken for a member of the prosecution team during the trial, one time (for the benefit of the prosecution) even going so far as to personally solicit testimony from an alleged abuse victim,

      - she allowed the prosecution to present incidents of sexual abuse within the AD before Monsignor Lynn was even born.

      - after Lynn's conviction, she dragged her feet for almost 6 months in delivering her 'opinion' to the Superior Court, and even had to be coerced by the court to finally send it.

      When the Superior Court ordered Lynn released forthwith, a humiliated (but obviously vindictive) Sarmina decided to hold him under house arrest.

      As a result of her (shall we be charitable) mismanagement of the Lynn trial, she was banished to the civil trial division. Sarmina wanted to make a name for herself, which she certainly did. IMHO, she should be removed 'forthwith'.

      Delete
    2. Wolfie Reynolds been a coke head since head since he was in Roman Catholic High. Tell Him UPS is hiring ,,, Fuck'in Scum Bag Schukill RAT !

      Delete
  5. What makes one think if you move this out of Philly it would be better for Lynn ? There are catholic churches in Montgomery, Chester and Berks county who also have and had abusive priests. Possibly a priest who was moved there by Lynn. Different state ? That does not help either. There are only 4 (four) archdioceses in this country who have had no accusations of sexual abuse by priests. Information that Ralph Cipriano does not know or information he would prefer not to share. Different country ? Nope that does not help either. The sick actions of catholic priests is global and in each location the crimes of these pedophile priests the church tried to hide it like Lynn did by moving priests from one spot to another.


    Its now time to concern myself with what the real media are reporting about, a cow loose on 295. A subject more important then Lynn. Moooo.

    ReplyDelete
  6. This would be a great site for Jason Duggard of TLC's 19 and counting to come to and feel support. I should not forget it would also be a great site for all those Christians who believe Duggard should be forgiven. What moral support Lynn, Shero, Avery could obtain.

    But let all of us not forget what Duggard admitted to doing. Sexually abusing minors and what was he in charge of at the church ? Child ministry !

    ReplyDelete
  7. I feel bad for Fr. Lynn for all he has been put thru. A total disgrace by womanizing Seth the stud who showed up in traffic court for a women that he was trying to pick up. Father Lynn was the scapegoat for the sins and disgusting acts of other priests. Being put on house arrest with 18 months left on his sentence. At least the inmates at CFCF n Waymart have respect for Fr.Lynn. It is well known the priest did not touch no one following orders from the Cardinal n if someone messes with Fr. Lynn. There will be hell to pay.

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    1. Bergerstrom will school seth the pud n The joke of the judge on his worst day.

      Delete
    2. Anonymous 10:50 I think you made the same statement before but what makes you think Lynn is not fair game for any other convicted felon especially those who have been sexually abused by another ? Lynn represents pure evil when it comes to the subject of sexual abuse. Is it your wishful thinking because Lynn is a priest and your belief he has done nothing wrong if he steps out of line or disrespects someone they would not hesitate to rip him apart ? Instead of ignoring my questions I would like to know why you feel the way you do.

      It would be more believable if you made a statement that Lynn is in solitary confinement or shadowed by a guard 24/7 for his protection not the words you speak he is untouchable.

      It is nice of you to try and end any fears his family may have or those who think he is innocent.

      Delete
  8. Hey 1:22. Father Lynn did not touch anybody n has done alot of good. He is the scapegoat for others. The reason i make my statements is because i been told by people inside dont mess with the priest. For the other priests n shero who knows what happens. What r they going to do mess with a 64 yr old man who is the scapegoat. Those who do r cowards

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    Replies
    1. Of course if he steps out of line or gets cocky then he is fair game

      Delete
    2. Anon 8:02 please read.

      The prisoner who strangled the priest John J. Geoghan behind bars testified Monday that he had resolved to kill him after Mr. Geoghan arrogantly brushed off criticism that he had "destroyed all kinds of lives."

      The witness, Joseph Druce, took the stand a second day at his trial for killing Mr. Geoghan, Mr. Druce, who is already serving a life sentence for another killing, has pleaded not guilty by reason of insanity, arguing that his own molestation as a child and years in prison had filled him with rage.

      Mr. Druce, 40, said that in the weeks before the killing, he twice confronted Mr. Geoghan, then 68,

      Age plays no difference. This poor soul was 4 years older. Lynn being a scapegoat is your feeling. Prisoners only hear the term convicted and read again why this prisoner killed the priest.. "Because of his own molestation as a child."

      Again, it is very nice of you to try and minimize the dangers for Lynn's family and anyone who feels he is innocent.

      Delete
    3. Geoghan was a serial molester who abused more than 100 children. He obviously was a sick, twisted and perverted man. Lynn is none of those things. You don't make a valid point. Lynn had to deal with molesters; he wasn't one of them. Reasonable people, even incarerated , can and do make the distinction.

      Lynn had the respect of the inmates with whom he lived in Waymart. The inmates knew his story and knew that he was not a criminal and didn't belong among them. That is the simple truth regardless of what the haters wish to believe.

      Delete
    4. I can see you and not only you would like to continue to live in your very own dream world far far away from reality. By your own admission Lynn had to deal with the molesters therefore knowing who the molesters were and he did nothing except move these molesting priests from parish to parish. Agreed the priests who molested children were some sick bastards maybe because of something that happened in their lives but what is Lynn's excuse. You people are great about coming up with excuses. Will you tell me Lynn's failure to protect children was because of this oath of obedience he took ? That he was only following the other pimp cardinal B instructions ?

      I look at the facts. Lynn admitted failure to protecting the children of the archdiocese and he is where he is suppose to be. If he behaves and tows the line and does what he is told to do by both the guards and fellow inmates he will exit without a scratch. However, if he gets an attitude while doing his time there are people in prison who will gladly set him straight.

      Lynn is not in some day camp with sing-a-longs at night. He is in a place no matter how much you feel the inmates respect him there maybe just that one who will look at him as an excuse for all the turmoil in his life because he was abused as a child and like Lynn there were people in his life that stood by and did nothing.

      In a way I hope what you believe is right, I would hate to come back here and say I TOLD YOU SO.

      Delete
  9. Ralph, did you know that thankfully the Superior Court granted Tom Bergstrom's request to assign the three original Superior Court justices to Monsignor Lynn's appeal? Now hopefully justice will prevail for Monsignor Lynn!

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    Replies
    1. @anonymous 7:52 - This is great news. Can you tell us the source of your information?

      Delete
    2. If this reassignment is true, this means that the original superior court judges, who now fully understand Sarmina's motives and who were probably responsible - in part - for her demotion to the civil court, will do the right thing:

      1) both for Monsignor Lynn by affording him a new trial and for the

      2) Philadelphia Criminal Justice System by starting to unravel a real travesty...

      Delete
  10. There is a gag order on Monsignor Lynn's new appeal. I will tell you one source: philly.com You will find that an article was written on philly.com on Friday, May 22nd

    ReplyDelete
  11. Punk ASS Tommy & Wolfie Reynolds Had the two BIG Black guys beat the drug dealers up ... Now they have been exposed ... every criminal knows who they are ... Chicken Shit White punks.... McDonalds is hiring ... Tell Wolfie to sell his socks & underwear to Fast Eddie Again ... Fucking Coke head .... Feds aren't done with theses fired cops Yet... Round 2.... Tell Tommy ... Streets is Watching... Wolfie had a Party in DEANS bar over the weekend with all his Fast EDDIE Friends .... Dirty Schukill Gang.... Get back up the road and sell your undies to Fast Eddie SAvitz ... HomO's its not safe on Tasker Street for ya Streets is watching Wolfie

    ReplyDelete
  12. Yo dumbass. You do know this particular blog is about Msgr. Lynn and not cops or drug dealers.

    Stop sniffing that white shit up your nose its killing your brain cells.

    Now I know why for a comment to be posted you match pictures instead of typing letters in a box. Its for people like you. Dah.

    ReplyDelete

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