Friday, October 30, 2015
Next Friday, in Courtroom 480 at City Hall, they're scheduled to pick a jury in the civil case of Billy Doe vs. the Archdiocese of Philadelphia et al.
The case still bears that title even though in August, the archdiocese settled with Billy Doe for a undisclosed pile of cash. It's an unholy pact that should have prompted every Catholic in town to demand that their archbishop tell them how much.
There are still three defendants left in the civil case; three men who went to jail for sexually abusing the credibility-challenged former altar boy turned heroin addict and accused dealer: ex-priest Edward Avery, the late Father Charles Engelhardt, and former Catholic school teacher Bernard Shero.
In the case of Shero, Judge Rosalyn K. Robinson ruled this morning that she was granting the plaintiff's motion for summary judgment in part. "It is hereby ordered, adjudged and decreed," the judge wrote, that "defendant Shero is collaterally estopped from denying or disputing that he committed the acts of sodomy and sexual abuse alleged in plaintiff's complaint."
A similar motion in the case of Avery is expected to be granted as well. That means for defendants Shero and Avery, rather than be allowed to contest the alleged sexual abuse of Billy, the civil trial, scheduled to begin Nov. 9th, would just become a hearing on how much more in damages should be awarded the plaintiff, to compensate for his alleged pain and suffering.
But here's where it gets interesting. Judge Robinson said she'll be ruling on the motion for summary judgment next week in the case of the late Father Engelhardt. And since the jury in Engelhardt's criminal case reached no verdict on the most serious charge, a count of involuntary deviate sexual intercourse with a child, the judge may allow the civil jury to decide what actually transpired between the priest and the altar boy.
"Our argument is that a civil jury should be allowed to decide what assault if any occurred," said Thomas R. Hurd, the lawyer defending the estate of the late priest.
Hurd cautioned that the decision whether to grant summary judgment is up to the court. But asked if he expects to be able to cross-examine Billy Doe, Hurd replied that he certainly hopes so.
If not, the civil case is over before it starts.
Way back on Jan. 30, 2013, in the second archdiocese sex abuse trial, a Common Pleas jury found Shero guilty of the rape of a child, involuntary deviate sexual intercourse with a child, endangering the welfare of a child, corruption of a minor, and indecent assault.
In the case of Engelhardt, the jury on the same date reached no verdict on a count of involuntary deviate sexual intercourse with a child. But the jury found the priest guilty on four other counts: endangering the welfare of a child, corruption of a minor, indecent assault on a person less than 13 years old, and conspiring with Father Ed Avery to commit sexual assault on Billy Doe.
Judge Ellen Ceisler subsequently threw out the conspiracy conviction as unproven.
It was a good start; it's a shame she didn't keep going.
On March 22, 2102, on the eve of the first archdiocese sex abuse trial, Avery pleaded guilty to involuntary deviate sexual intercourse with a child and conspiring with Msgr. William J. Lynn to endanger the welfare of a child. At the time, Avery was facing a possible sentence of 13 1/2 to 17 years; his plea bargain resulted in a sentence of 2 1/2 to 5 years.
At the Engelhardt-Shero trial, Avery, called as a prosecution witness, recanted, saying he had lied to take the plea bargain because he didn't want to die in jail. He said in court that never even met Billy Doe and wouldn't know him if he was in the courtroom.
In the civil case, a judge granted Avery permission to represent himself pro se. But Avery, who just got turned down for parole again, is still an inmate at SCI Laurel Highlands, in Somerset, PA, located some 238 miles west of Philadelphia. Since no arrangements have been mentioned on the docket that would bring him to town to play lawyer, it's doubtful that Avery will be around to defend himself during the civil trial.
With the archdiocese out of the picture, the civil case at this point basically boils down to a publicity stunt. Avery and Shero are broke; Engelhardt, who took a vow of poverty, doesn't have more than $1,000 left in his so-called estate.
So there's no money to go after. What Billy Doe's civil lawyers are looking for is a multi-million verdict from another gullible jury that will make a great headline in the local papers, where every accused priest is already guilty, and maybe some face time on the TV news.
But Hurd's presence could turn the civil case from a publicity stunt into a real trial.
The 67-year-old Engelhardt died in November 2014 at Geisinger Medical Center in Danville, Pa. He spent his last hours as a falsely-accused prisoner under armed guard and handcuffed to a hospital bed, after being denied potentially life-saving cardiac surgery.
At his funeral, Father James J. Greenfield, the leader of Engelhardt's religious order, the Oblates of St. Francis de Sales, vowed to continue the legal battle to clear the priest's name.
On Sept. 9, at Hurd's request, Judge Linda Carpenter granted an "emergency motion to compel the independent medical examination" of the plaintiff. According to the judge's order, Billy Doe had to travel from Florida to be examined by Dr. Stephen Mechanick, a forensic psychiatrist in Bryn Mawr.
Such exams aren't cheap. But the oblates fight on.
Billy Doe testified in the first archdiocese sex abuse case, but defense lawyers elected not to cross-examine him because the marquee defendant, Msgr. Lynn, had never even met Billy.
On June 22, 2012, a jury in Common Pleas Court found Msgr. Lynn guilty of a single charge of endangering the welfare of a child. He was the first Catholic administrator in the country to go to jail for failing to adequately supervise predator priests. On July 24, 2012, Judge M. Teresa Sarmina sentenced Lynn to three to six years in jail, where he remains.
In the second archdiocese sex abuse case, Doe, who told an incredible tale on the witness stand, was capably cross-examined by Hurd's law partner, Michael J. McGovern. Billy told a constantly changing story contradicted by common sense -- as well as all the witnesses and evidence in the case gathered by the district attorney's own detectives. But the jury inexplicably chose to believe Billy, and refused to talk about it afterwards.
It was a verdict that not only shocked the trial judge but several reporters who witnessed the miscarriage of justice.
In the civil case, Billy Doe was brought in for repeated depositions, and questioned by a roomful of lawyers.
Next week, if a judge rules in his favor, Thomas R. Hurd may get the final chance to cross-examine a witness that many lawyers in this town already know to be a professional liar.