Tuesday, June 11, 2019

Can Msgr. Lynn Case Be Retried Without A Victim?

By Ralph Cipriano
for BigTrial.net

Judge Gwendolyn Bright today set a Jan. 13th date for the retrial of Msgr. William J. Lynn on a single charge of endangering the welfare of a child. Now the question hanging over the case is whether the D.A.'s star witness will be there.

Judge Bright also set an Oct. 28th date for a pre-trial hearing in the case, at which two big issues may be discussed. One is the topic of further prosecutorial misconduct in the case involving two sets of documents that the D.A.'s office withheld from defense lawyers during the original trial.

The second more complicated issue is whether the D.A.'s office will be able to retry the case against the monsignor without a victim. In doing so, the D.A.'s office would spare itself the burden of having to watch former altar boy Danny Gallagher try to explain on the witness stand all of his many lies and memory lapses while he was fraudulently claiming in three different courtrooms that he was supposedly raped by two priests and a schoolteacher.

The big question is whether Judge Bright will go along with a victim-less case.


How can the D.A.'s office retry a child endangerment case without an alleged victim? Well, you can certainly understand why they'd want to.

Danny Gallagher told so many different stories about his alleged rapes over the years that the contradictions fill hundreds of pages of transcripts in the civil and criminal courts. That's great grist for cross-examination. And when he was questioned about all those contradictions in the civil courts, Gallagher had to claim he didn't remember more than 130 times.

If you're the defense in this case, it's more evidence to present to a jury that Gallagher is a stone-cold liar.

For Gallagher, who has already collected $5 million in a civil settlement, the question is why he would ever risk coming back to Philadelphia from his Florida home after he already got paid. And if he runs into trouble on the witness stand, the lying, scheming altar boy could be risking a perjury charge.

Well thanks to some twisted logic by the state Supreme Court, the D.A.'s office can actually make an argument that they can legally retry the case against Lynn without a victim. In fact, they're expected to do so. But it's going to take some explaining as to how we wound up in the twilight zone with this crazy case.

Let's start at the beginning. Msgr. Lynn is the Archdiocese of Philadelphia's former secretary for clergy from 1992 to 2004. Back in 2012 he was convicted of a single felony count of endangering the welfare of a child, namely Gallagher, the former altar boy a grand jury dubbed "Billy Doe."

When he was sentenced to 3 to 6 years, the monsignor became the first Catholic official in the country to go to jail in the pedophile priest scandals, not for touching a child, but for enabling the abuse by not doing enough to prevent it.

But the state Superior Court in 2013 overturned Lynn's historic conviction on the basis that the state's original 1972 child endangerment law didn't apply to Lynn. This position was supported by former District Attorney Lynne Abraham, who wrote in a 2005 grand jury report that the state's original child endangerment law didn't apply to supervisors such as Msgr. Lynn or his boss, Cardinal Anthony Bevilacqua. That's why the 2005 grand jury didn't indict Lynn or Bevilacqua, although the grand jurors stated after investigating decades of child abuse and cover ups in the archdiocese, that they surely would have indicted both clerics if they could have.

The child endangerment law, however, was applied for more than three decades only to people who had direct contact with children, such as parents teachers or guardians. D.A. Abraham then led a statewide campaign to amend the law. In 2007, the state legislature complied by amending the law to specifically include supervisors.

But all that legal and legislative history meant nothing to the state's highest court.

In 2015, the state Supreme Court decided to reinstate Msgr. Lynn's conviction, and reverse the reversal of the state Superior Court. To pull that off, the state Supreme Court not only had to reinterpret the original meaning of the state's1972 child endangerment law; they also took a much harsher view of what actually constituted the crime of child endangerment in the Lynn case.

And that meant big trouble for the defendant.

The state's original 1972 child endangerment law 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 a child by violating a duty of care, protection or support."

While the state Superior Court found that the original law didn't apply to Lynn, because he was a supervisor, the state Supreme Court took a different view. According to the Supremes, the only thing that mattered was "whether the evidence sufficed to prove [Lynn's] supervision of the welfare of a child."

Not whether he was a supervisor.

"Focusing on the supervision element, the statute is plain and unambiguous that it is not the child that [Lynn] must have been supervising, but the child's welfare, including that of" [Gallagher], identified in the Supreme Court opinion by his initials, D.G.

"By requiring supervision of the child's welfare rather than of the child, the statute endeavors to safe-guard the emotional, psychological, and physical well-being of children," the state Supreme Court opined. "Simply put, [Lynn] did not safeguard the physical and moral welfare of D.G. by placing Rev. [Edward] Avery, a known child molester, in a position to molest him."

So according to the state Supreme Court's reinterpretation of the meaning of the original child endangerment law, merely by placing a child in harm's way, Msgr. Lynn committed the offense of endangering the welfare of a child. So in a retrial, the D.A. can actually argue that they don't need no stinkin' victim.

But Msgr. Lynn's lawyers are expected to argue that in the original case, since the D.A. put up Danny Gallagher as a victim, that in a retrial, they're not going to be able to run away from that. The defense lawyers can say to the judge that in a retrial, the D.A.'s office should not be allowed to redefine the crime of endangering the welfare of a child. Because we're talking about a defendant who originally was charged way back in 2011 with endangering Gallagher's welfare.

It will be up to Judge Bright to decide whether she's willing to allow the case to be retried without a victim. If she decides no way, it could be the end of the circus. The D.A. could simply decide to fold its tent rather than have to put the radioactive Gallagher on the stand.

But if the case proceeds, then it will be on to the prosecutorial misconduct issue. Judge Bright has already found in this case that the D.A. engaged in prosecutorial misconduct when it did not disclose to the defense a pre-trial grilling of Gallagher by Detective Joseph Walsh, the lead investigator in the case.

Walsh came out of retirement in 2017 to testify that he repeatedly caught Gallagher telling one lie after another. And when he confronted the former altar boy, Gallagher actually admitted to the detective that he had made up his original charges of rape that he told to two social workers at the archdiocese.

None of this was ever divulged to the defense before Lynn's first trial.

Since the first trial of Lynn two sets of documents have surfaced that were never turned over to the defense.

The first set of documents was seven pages of typed notes by former Assistant District Attorney Mariana Sorensen, dating back to Jan. 28, 2010, when Sorensen and another detective first interviewed Gallagher at the D.A.'s office along with Gallagher's parents. This was at a time when the D.A.'s office was trying to get Gallagher, who was all over the lot with his original charges, to stick to a single narrative.

These are notes that the D.A.'s office, in three different courtrooms in front of three different judges, have claimed didn't exist. The defense will no doubt call Sorensen as a witness and ask her to explain all the lies.

Next, Lynn's lawyers will introduce some more notes from the archdiocese social workers who first investigated Gallagher's claims of abuse. The notes date back to 2009 and show that the altar boy didn't want to press charges when he first came forward to make his claims of being repeatedly raped by two priests and his homeroom teacher; instead all Gallagher wanted to do was get paid.

Of course, none of this material was ever turned over to defense lawyers either.

At yesterday's brief status conference, the judge asked Assistant D.A. Blessington if the prosecution was seeking a new trial date. This was after Blessington repeatedly warned the judge that the D.A. might file more appeals of her future pretrial rulings.

The D.A. just lost an appeal to the state Supreme Court of an earlier pretrial ruling by the judge, a delay that stretched back to last year.

"We are proceeding to trial," Blessington told the judge.

The publicity-shy judge also made it plain that a completely nonsensical pretrial gag order that she imposed on the well-publicized case, now in its ninth year, will remain in effect. So that both sides can't do any talking to the press.

12 comments:

  1. Does this mean the Inky gets to dust off all of its old articles and rerun them to help the prosecution?

    ReplyDelete
  2. Ralph - was Dougherty the detective that first interviewed Gallagher with Sorensen? There doesn't seem to be much coverage of him. He was a homicide detective, with minimal experience interviewing live victims because the victims in his cases were obviously all dead. Yet he testified in one of these cases, and I'm pretty sure he interviewed Gallagher.

    He clearly had a different take on Gallagher than Walsh did. I'm curious as to how he got involved with the "god squad" in the first place, and why he went somewhat quietly into the sunset. Will he be coming back now to testify?

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  3. No it wasn't Dougherty, it was Drew Snyder. No experience with sex abuse.

    ReplyDelete
  4. It seems that victim testimony would be needed to convince an unbiased jury and to satisfy the defendant's constitutional right to face his accusers. Perhaps the prosecution is counting on a biased jury after years of news reports, documentaries and movies vilifying Lynn or the Catholic Church.

    The "no harm, no foul" concept in law also seems to require that a child suffered harm to support a criminal charge of child endangerment. How many people have been put in prison for child endangerment where the prosecution had no evidence a child suffered harm?

    Law enforcement and the news media have a disconnect on child endangerment. Numerous cases are reported where a child dies from drowning, bakes in a hot car, kills himself or a playmate with a parent's gun, etc. yet the parent is not charged. It's just chalked up as a "tragic accident" as in the recent case where the 3 year old son of a country music star drowned at home. The local sheriff's office had no comment suggesting there was no investigation. Exactly how the boy drowned was not even reported.

    ReplyDelete
  5. Ralph - today the PA SC unsealed an order, in this case: https://ujsportal.pacourts.us/DocketSheets/Appellate.aspx
    Docket: 18 MM 2019

    The case is completely sealed but obviously involves a Franklin County grand jury investigation. The AG is named because the petitioner is challenging a state statute.

    The SC will be hearing oral arguments on the case.

    If it's a grand jury, and it's sealed, and it's attacking the constitutionality of a statute, my guess is it's probably a church case. If the SC is hearing it, and instructing the parties on how to redact the record, it's probably a giant mess of a case.

    ReplyDelete
  6. Ralph, thanks for your excellent work. Any idea how Krasner is leaning on this one? I thought they would have cut bait on this one already? Thanks

    ReplyDelete
    Replies
    1. Krasner is so busy legalizing drug dealing and drug using and prostitution and driving while stoned that he may not have had time yet to consider this case.

      I suppose you when you're emptying the city's jails, you have to draw the line somewhere, so why not hold the line on child endangerment, especially when it comes to an alleged victim who's a total fraud?

      We'll have to keep an eye on Progressive Larry, but so far all signs point to a retrial, especially if they don't have to deal with Danny [The Fraud] Gallagher.

      Delete
  7. Defense attorneys rose and gallagher - if both of you had the best interest of your clients in all of this then a priest and teacher would have never seen the inside of a prison. instead you ruined the lives of two men, one of which died in prison, and their families as a result of your failures and ignorance of the law. and in the end you got paid the same as Danny Gallagher.

    ReplyDelete
  8. The defense attorneys in the Engelhardt-Shero case were Burt Rose and Mike McGovern. Ok, I didn't think they went after Danny Gallagher hard enough, and they made the mistake of being overconfident, and not severing their cases.

    But every reporter at the trial, including myself, thought the jury would either acquit outright or hang. Something funny happened with that jury, and most of the jurors, including a very hostile foreperson who acted like she had something to hide, refused to talk about it.

    ReplyDelete
    Replies
    1. So what is the recourse for Mr Shero and Fr Englehardts family? Is ther any? Krasner & Co are so concentrated on freeing convicted felons while having no concern over prosecutorial misconduct in his own office. Lying about not having any notes is a serious offense. But still nothing is done.

      Delete
  9. Isn't that interesting to see that the judges in the Danny Gallagher case are all women and not men due to the motherly instincts to protect a perjurious child named Danny Gallagher by substanting the many perjurious and changing stories uttered by Danny as being true?

    The collective damage being done to the structural integrity of Common Pleas Court by those women judges is sickening.

    Even more, DA Krasner has lowered the DA's office to that of being no better than the criminals they prosecute.

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  10. Have to agree with all your points James. On the money.

    ReplyDelete

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