Tuesday, March 27, 2012

The Prosecutor's Opening Statement: Whispers in the Dark

She came out whispering, and left behind a confusing pile of facts. But there weren't any objections, mainly because even the lawyers seated nearby in the courtroom had a hard time hearing what the prosecutor had to say in her opening statement.

Assistant District Attorney Jacqueline Coelho took center stage Monday as the archdiocese of Philadelphia sex abuse case opened on the third floor of the Criminal Justice Center. The courtroom was packed with 30 journalists, including representatives from the New York Times, The Wall Street Journal, and CNN. Four courtroom artists were ready to slap down paint and chalk. Several priests also showed up wearing collars, presumably to support their accused brethren.

But for more than an hour, as Coelho rambled, the biggest challenge was hearing what she had to say. She spoke in a barely audible tone that had the press and courtroom clerks scrambling around the room and straining their ears, in a vain attempt to figure out what was going on.  It's not as if the district attorney's office can't be eloquent about the subject of pedophile priests; a 418-page grand jury report released by the DA in 2005 was a literary masterpiece.

But after some preliminary remarks about parishioners being deliberately left in the dark about sex abuse, Coelho did some name-dropping, detailing abuse cases from a dizzying array of archdiocese pedophile priests dating all the way back to 1948. One defense lawyer counted 21 pedophile priests mentioned by name by the DA in her opening statement while she was "weaving through the past seven decades," as the defense lawyer put it. Another defense lawyer noted that the oldest case cited by Coelho, back in 1948, occurred 15 years before his client, Father James J. Brennan, was born in 1963.

The ongoing archdiocese trial is historic for one reason. For decades, Catholic administrators across the country have dealt with pedophile priests by transferring offenders to new parishes, usually without notice, where they often continued to molest other children. Monsignor Lynn, the Philadelphia archdiocese's secretary for the clergy from 1994 to 2004, is the first Catholic administrator in the country to be held accountable for his alleged role in the pedophile priest scandal. He is charged with conspiracy, and endangering the welfare of children.

The other defendant in the trial, Father James J. Brennan, is charged with attempted rape of a 14-year-old, endangering the welfare of minors, and conspiracy. A third defendant, former priest Edward V. Avery, pleaded guilty last week to conspiracy and sexually assaulting a 10-year-altar boy, and was sentenced to 2 1/2 to five years in prison.

The judge in the case, Common Court Pleas Judge M. Teresa Sarmina, instructed the jury on Monday to draw no inferences from the absence of Avery and his lawyer. But surely, the 12 remaining jurors and 8 eight alternates will wonder what became of the padre. The judge went behind closed doors for more than an hour Monday to question jurors to see whether they were unduly influenced by the publicity over Avery's guilty plea. Two alternate jurors were dismissed without explanation.

As Secretary for the clergy, Monsignor Lynn functioned "like a human resources manager," Coelho told the jury. But he was also responsible for protecting the rights of children, she said. "And so what's the secretary for the clergy to do?" she said. "He kept those secrets in the dark. He kept parishioners in the dark ... he paid lip service to children's protection."

Coelho made several references to the archdiocese's "secret archive files" containing more than 300 allegations of sex abuse that were kept for decades in a locked safe at archdiocese headquarters. Lynn's role was "keeper of the secrets," the district attorney said. The monsignor's main purpose was "to keep a lid on scandal," she said. Coelho told the jury that a mountain of church documents will show that "the protection of children is the furthest thing from Lynn's mind."

Coelho ripped Monsignor Lynn for sympathizing with the wrong people while he investigated allegations of child sex abuse. "The victims are met with skepticism, and the priests are believed at all costs,” the district attorney said. She referred to several instances mentioned by the 2005 grand jury report. An archdiocese seminarian who alleged that he was the victim of priestly sex abuse was kicked out of the seminary. A nun was fired from her job as a director of religious education after she wrote a letter to the archbishop, asking if it was appropriate for a priest to possess child pornography.

Coelho also mentioned the case of a monsignor who was disciplined after he met with Lynn and told him he refused to accept the transfer of a pedophile priest into his parish. The district attorney also mentioned the case of a priest who wrote a note where he talked about "performing fellatio" on a seventh-grade boy that he was coaching in a flag football league. Monsignor Lynn was asked to investigate the incident, the district attorney said.

"Do we call the mother of the seventh grader" to ask if her kid is OK? Nope, the district attorney said. Under Lynn, the archdiocese investigation just accepted the priest's story that the note was just a fantasy, and he had never sent it. The mother of the seventh grader was not contacted, and did not find out about the incident for years, the district attorney said.

When it came time to give his opening statement, Thomas Bergstrom, representing Msgr. Lynn, used his 40 minutes to re-divert jury outrage. "There is documented proof that the sexual abuse of children happened in the Catholic Church," he told jurors. "We're not going to run from that."

The defense lawyer reminded the jury that his client "sits cloaked in the presumption of innocence." He quoted Kingman Brewter's definition of the presumption of innocence: a generosity of spirit that presumes the best and not the worst of a stranger."

He also quoted To Kill A Mockingbird, saying, "the jury box is the one place in the country where a man ought to get a fair shake."

Investigating child sex abuse is "a tough job, an ugly job, but he did it," Bergstrom said of his client. The defense lawyer told the jury that when the two alleged victims walk into the courtroom to confront Lynn, "he has never met them, he has never seen them ... they are total strangers."

Lynn was responsible for 800 priests, Bergstrom said. He reminded the jury that "only one human being" on the planet was responsible for assigning pedophile priests to another job, and that was the late Cardinal Anthony J. Bevilacqua. It was Bevilacqua alone who decided where the pedophile priests would work next, and whether they would be around children, Bergstrom said. He mentioned a few instances of where Bevilacqua overruled Lynn's recommendations.

Bergstrom said that after jurors hear voluminous evidence from the prosecution, they may well conclude that there was "a massive conspiracy in the Philadelphia archdiocese to harm children. That may be the case," the gray-haired lawyer told the jury. "But it's not this case."

Bergstrom stressed that the one attempted rape that Lynn's co-defendant, Father Brennan is charged with, allegedly took place at a sleepover down the shore at Father Brendan's house, at a time when the priest was on leave for a year, and "not under the supervision and control of Msgr. Lynn." He also noted that the alleged victim and his family for years remained friends with Father Brennan.

The defense lawyer talked about what Lynn did shortly after he was given the job of investigating pedophile priests. In 1994, Lynn went to the 12th floor of archdiocese headquarters, where they kept the locked safe that contained the sex abuse allegations, and "he found 323 files." The monsignor read the files and compiled a list of 35 pedophile priests who had either been found guilty or had been accused of credible evidence of abuse of minors. Lynn wrote a memo and attached to it a list of the 35 pedophile priests.

He sent that memo up through the channels, through a string of archdiocese administrators ultimately leading to Bevilacqua. The archdiocese chain of command included the Rev. Joseph Cistone, Monsignor James Molloy, and Bishop Edward Cullen.

And what did the cardinal do when he got that 1994 memo? He told his underlings to shred it, the defense lawyer said. The Catholic administrators followed Bevilacqua's orders; they shredded four copies of the memo. But for his own protection, Msgr. Molloy kept a copy, which was found in the archdiocese safe in 2006, after the monsignor died. For unexplained reasons, even though they were under subpoenas, archdiocese officials never turned over that memo until recently.

"You're going to see that memo," Bergstrom told the jury. You're going to see that Msgr. Lynn did his damndest to get a handle on this awful issue."

Bergstrom echoed the conclusions of the 2005 grand jury report. What happened in the archdiocese may have been horrible, but it wasn't Lynn's fault. The grand jury said it first believed that Bevilacqua and other administrators like Lynn were "tragically incompetent at rooting out sexually abusive priests and removing them from the ministry." But after reviewing thousands of pages of secret archdiocese files detailing the same "incompetent investigation techniques ... it became apparent to the grand jurors that Msgr. Lynn was handling the cases precisely as his boss [Cardinal Bevilacqua] wished," the report said.

After Bergstrom sat down, William Brennan stood to defend his client, Father James Brennan. "I'm usually referred to as Brennan, not related," the priest told the jury. He turned to the defendant. "I'd be proud to be related to that man." The defense lawyer said his client was a faithful priest who liked to have a drink. "He's not the only Brennan who does," the lawyer added.

Brennan the defense lawyer told the jury that Father Brennan's role in the archdiocese case was "miniscule." The trial is expected to last a couple of months. During most of that time, the defense lawyer told the jury, he'd be sitting at the defense table, saying nothing. "I might be doing the crossword puzzle," because 90 percent of this case has nothing to do with Father Brennan."

Indeed, the defense lawyer said, the attempted rape case against Father Brennan rests on a single accuser, a man who waited ten years to tell his story, a man who's been in and out of jail for forgery, theft, identity theft, and filing false reports. And the alleged victim in the case only came to the priest after a number of years after he needed legal help.

In her opening, Assistant District Attorney Coelho had referred to the attempted rape allegation against Father Brennan as pressing his erect penis through clothes into the victim's "butt cheeks.” Both the accused and the accuser were fully clothed. But Brennan the defense lawyer referred to the alleged act as "a pelvic bump."

The allegations against Father Brennan are "a single-bullet case," the defense lawyer said in his 25-minute opening. And once the jury figures out that the story of the single accuser is "incredible ... the case is over."

"He makes up stories," the defense lawyer said of the accuser. The lawyer asked the jury to hear all the evidence, and "find this priest innocent."

In terms of oratory, eloquence and humor, as well as presentation, the defense was the clear winner in opening statements. But the judge reminded the jury that none of what they had heard from the lawyers was evidence.

After the jury filed out of the courtroom, defense attorney Brennan complained about the judge's continuing gag order in the case that prevents lawyers from talking to the press. He said that outside the courtroom, he and his client were chased by a media swarm of 40 to 50 people. The judge said that she was rethinking her gag order, but that the case would not be tried in the media.

After the judge left the courtroom, a reporter asked District Attorney Coelho why she had not been audible in her opening statement. "I'm not going to talk to you," she said. At least she said it clearly.

The trial resumes at 9:30 a.m. Tuesday.


  1. I am SO GLAD you are filing these reports. Will be reading here daily.

  2. "He sent that memo up through the channel"-- and all he had to do to protect kids, was turn the memo over to the police.

  3. In reference to your post, JudyJones, the following statement from the Northeast Times in Philadelphia shortly after the release of the first GJR in September 2005 may be helpful:

    According to an attorney for the archdiocese, C. Clark Hodgson of Stradley Ronon Stevens & Young, church officials were not obligated by state law to report sex-abuse cases to civil authorities unless the actual child victim notified the church personally. If the child’s parent filed the complaint with the archdiocese, however, church officials did not have to notify police.

  4. Lynn's defense appears to be that he was the mafia "hit man" who would do his job because his boss told him to do it, and since his boss is dead, he should get to go home, regardless of him being the lead hit man world's largest organized child rape syndicate.

    If the prosecutor loses this case, they should never work again.

  5. I can’t quite grasp the change to Attempted Rape from Rape in the charge against Fr. Brennan.

    As this article indicates, the fact was that there were layers of clothing between Fr. Brennan’s organ and the rectum of the accuser. That fact has remained constant, surely, all along (unless we presume that the investigators and prosecutors did not know about the layers of clothing until just before the trial – which would raise some serious questions of its own).

    Why then was the case characterized as a Rape case from the get-go? Why did the prosecutor’s office not work to correct that clearly and vitally inaccurate impression conveyed in the media?

    An impression, I would add, that was clearly prejudicial in the sly manner of this sex-offense Mania stampede: the potential jury pool is effectively ‘tainted’ by the media before they are even called for jury duty.

    We hear so often loud complaints of sly ‘tricks’ and ‘dodges’ played by defense counsel in these cases. But about this bit of possible (or probable) mis-, mal-, or nonfeasance by the prosecution we hear nothing from those who claim to be spending all their energy combating Rape and merely ‘seeking justice’ for the alleged victims.

    I think of the ‘moral equivalence’ gambit long established – alas – in US foreign policy: it is wrong to apply the same standards to ‘us’ and to ‘them’, since ‘we’ are Good and ‘they’ are Evil.

    I heard pretty much the same claim asserted by Mr. Clohessy earlier this year when, in trying to defend his own dishonesty, he asserted that there are ‘two standards’ to be used in judging these cases, i.e. that those who are (or have declared themselves to be) ‘Good’ should not be held to the same standards of truthfulness as those who are merely perpetrators or cover-uppers of Evil.

    An often-asserted frosting meant to be larded over the rottenness of this bit of cake is that the Church is clearly a vast criminal conspiracy of ‘pedophiles’ (loosely and broadly defined) and so this is a ‘war’ of Good against Evil and – echoing Dick Cheney’s repellant assertion of a decade ago – a walk has to be taken “on the Dark side” but that’s OK because the Good, by definition, cannot be Dark and cannot do Evil.

    Whatever else such a conceptual gambit may be, it is not traditional and genuine Catholic moral teaching and is – indeed – profoundly alien to that corpus of moral teaching.

    I doubt that it will bear good fruit in this arena any more than it did in foreign policy and the lethal national misadventures in Iraq and Afghanistan and Libya. And it will no doubt work as much profound corruption in the one arena as it already has in the other.

  6. The Prosecutor should speak clearly enough to the court room especially during the opening statement. I wonder why this prosecutor was whispering.

    defense lawyer san diego

  7. I heard a lot about it a while ago, but still when i read about it my heart almost stops.. What is wrong with this world?? i hope all such people get the punishment they deserve...

    Lorraine Nolan Corp


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