Wednesday, May 9, 2012

Detective, Defense Lawyer Battle Over the Soul of Father Brennan

A defense lawyer and a detective went snorkeling through the archdiocese's confidential files Wednesday in search of the real Father James J. Brennan.

In an often tedious cross-examination, the defense lawyer tried to paint Father Brennan as a talented priest who was also a spiritual searcher, while the detective saw the 48-year-old Father Brennan as a tormented soul trying to hide a secret.

Meanwhile, the jury's attention span was challenged, as they often stared off into space while the defense lawyer and detective did battle during a long afternoon of questioning.

Defense lawyer Richard J. Fuschino Jr. asked Detective James Dougherty to dig into the priest's personnel jacket. Some 70 formerly confidential documents began with the priest's background as a seminarian. Father Brennan was the fourth of seven children born into an Irish-Catholic family. His father was a lapsed Catholic, his mother a true believer. The tensions in the Brennan marriage revolved around the couple's religious differences.

The son that they produced had a "buoyant, happy personality," but was also characterized by a searing intensity whenever he got involved in something. Father Brennan's contemporaries in the seminary saw him as "an articulate spokesman for the Catholic faith." His peers noted Father Brennan's leadership skills, amiable personality and eloquence. He had a "zeal for souls,"it was noted in the personnel files, and he also was "comfortable with both sexes," something unusual for a seminarian.

But Father Brennan was also moody, the archdiocese's confidential records said. He could be aloof, and had to be talked into doing mundane parish activities, such as attending the annual Christmas tree lighting service. The priest also wrote candidly that he "got tired of listening to all the elderly people talk about their problems."

The files that Fuschino and Dougherty sparred over were bathed in Catholic psycho-babble. There was plenty of talk about spiritual discernment, meditation, and contemplation, and ponderous phrases such as, "his priestliness was not in question."

Throughout the cross-examination, Fuschino tried to pull Dougherty into Catholic-speak, to discuss terminology such as spiritual discernment and seeking God's will for one's life, but every time, the prosecution objected, and Judge M. Teresa Sarmina upheld the objection.

Father Brennan is accused of the attempted rape of a 14-year-old boy in 1996. During his cross-examination of Detective Doughery, defense lawyer Fuschino took pains to point out that in all the documents, the only times the word abuse was mentioned was twice, once by Cardinal Bevilacqua and once by Monsignor Lynn, and both were referring to abuse that Father Brennan himself may have suffered when he was a child.

"Yes, that's my understanding," Dougherty deadpanned.

The other defendant in the trial, Msgr. William J. Lynn, was quoted in the files as being concerned about Father Brennan. The priest had "a restlessness in his life that's very pervasive," Lynn noted in his files. The monsignor wrote that Father Brennan was having "a real crisis of the faith" when he applied for a leave of absence from the priesthood back in 1996.

The loquacious Father Brennan added to the debate when he wrote to Cardinal Bevilacqua, to confess that he had "chased false gods" while off on his leave of absence.

But Detective Dougherty stubbornly kept both feet planted on the ground. "I believe it was more than just a crisis of faith," the detective told the defense lawyer. Dougherty implied that Father Brennan was running from other demons.

When Father Brennan sought to become a Trappist monk in 2000, he told the cardinal that he had fallen in love with "the contemplative life." But Dougherty read the priest's spiritual yearnings, and calmly told the defense lawyer, "I would say it's being written by someone who's tormented by something."

For Father Brennan, the spiritual search ended on Jan. 18, 2006, when Mark Bukowski went to authorities and charged that ten years earlier, Father Brennan had attempted to rape him.

The priest was given 48 hours to move out of the rectory where he was staying. He was removed from ministry, and stripped of his priestly functions. On courtroom computers, the defense lawyer showed the jury copies of the thousands of letters that the archdiocese sent to former high school students and parishioners of Father Brennan's, seeking other victims of abuse.

The defense lawyer also displayed articles printed in The Philadelphia Inquirer and Delaware County Times, among other newspapers, that advertised that authorities were seeking additional victims of abuse. But none came forward. When Detective Dougherty was asked by Fuschino about the search for additional victims, he gave a carefully coded response, that no one came forward to say that they themselves were the victims of abuse.


  1. "often tedious" and "bored jury" is bad on cross. Usually, jurors perk up for cross because it is more dynamic and the conflict creates more drama. Sounds very ineffective aside from the "no other victims came forward" piece.

    The jurors have long made up their mind. They know Fr Brennan is an oddball and troubled priest. They know he was troubled when he took it upon himself to have a sleepover with a troubled kid, let him watch porn, and share a bed. Prosecution orientated jurors are long past being creeped out by this guy. Defense orientated jurors are going to say" where is the smoking gun." Is there enough evidence to convict, sure the essential elements of Mark's story, a sleepover with a whack job gone bad, are all corroborated. Is there enough that some will find reasonable doubt, sure, nobody knows what happened in that apartment but two very troubled people.

    This day sounds like a day where the defense really got off message for anyone who is not deeply catholic and has a special reverence for the church, priests, and the faith. I can't imagine that the avalanche of evidence of priest abusers and their enablers hasn't killed that blind faith.

  2. kop, love your analysis.

    How much does the jury tend to make their decision based on the testimony of Mark Bukowski? I would think that a good summary for the prosecution would be to ask if the jury thought that Mark Bukowski was that good of an actor, and that he was just acting for money, in spite of all of the endless child rape crimes committed by Catholic priests.

  3. Ralph, again, thanks for taking us inside, even on days that aren't as fascinating.

  4. I Love This Website, never miss a day. Brilliant, so needed, so appreciated, love you too now, Ralph.

  5. I have wondered since this trial started if the prosecution has ever had a key document, "Crimen Sollicitationis," the Top-Secret, Vatican Directive, sent out to EVERY archdiocese on the planet, telling bishops how to "handle cases of Priest Pedophilia," for the purpose of AVOIDING SCANDAL to the Church? EVERY archdiocese had a copy of this document in their "Secret Archives." This document would be key to showing how those abused were intimidated and coerced into silence by threats of excommunication, etc...... if they ever revealed the contents of their ecclesiastical trial against their Pedophile Priest.

    1. I know "Crimen Sollicitationis" well, and it told bishops that in cases of priest pedophilia, they should

      - give confession to the child rapist and to the child (making the child feel more guilty)
      - commit both of them to silence, or they would face excommunication and go to hell

      This was typical Catholic coordinated cowardice, where the church made a conscious decision that it was better for the child to suffer than to have a child rapist and his pedophile protecting pals suffer. This, of course, is what "Catholic God" would want.

      Another little known part of Crimen that you can see in wikipedia is that it also gives the same measures for sex with animals.

      This is why someone should investigate the chickens on Brennan's farm.....

  6. This is a great blog. Like Kay, I never miss a day. Ralph is doing a great job publicizing this sordid affair, and the commenters are always interesting. I'm sure the Archdiocese would like nothing better than for this trial to be over so that the whole mess will fade into oblivion and people will go on with their lives. That's the last thing that should happen, however. The Church needs serious reform in a lot of areas to make sure this never happens again.

    1. The beauty of the internet that the old men in the Catholic church don't understand is that

      - the truth remains online forever
      - it can be spread by whoever wants to spread it
      - it can be read by whoever seeks the truth

  7. "How much does the jury tend to make their decision based on the testimony of Mark Bukowski?"

    Unlike many rape cases where there are significant factual disputes regarding access to the victim, consent, time, place, and manner, etc., most of the actual event is actually corroborated or admitted. Brennan admits that he slept in the same bed as a teen on a particular evening and that they watched porn, he even admits to wrestling with the kid in his gym shorts sans underwear. The only real factual issue is whether Brennan had sexual contact while they were in bed together. if the jury thinks he did, then he will be convicted. But there aren't the type of credibility hammers you usually have. For example, in the recent Travolta accusations, "Barbarino" claims that he wasn't even on the West Coast at the time. Typically, the priest could say that he was never alone with the kid, or they could cross the kid about details of the location of the assault (what did the rectory look like), or there are witnesses that come forward to say that the priest was never alone with the kid. And we know from the Mom's testimony and Brennan's admissions, that something weird happened that was reported immediately. The jury has heard an avalanche of evidence that abused kids don't generally report the abusive priest right away.

    In my opinion, the defense has attacked Mark's general credibility effectively--he is a petty criminal with questionable credibility. But while attacking his general credibility, they have basically admitted or corroborated most of the details of the incident that normally would be ripe avenues for dispute; so there is not a lot of evidence that he is lying about this specific event--except for the nature and extent of contact.

    Most jurors made up their mind with the brief description of the case. "This is a case where a priest is alleged to have abused an adolescent boy." They bring in all their preconceptions, biases and prejudices. After hearing that statement alone, depending upon the inclination of the juror, he or she will start to form the narrative that supports their inclination. He or she will pluck pieces of evidence from the trial that supports the preferred narrative. On a panel of 12, there might be only 1 or 2 jurors that truly keep an open mind; or whose narrative changes from the initial impression. For that 1 or 2 open-minded, the assessment of Mark's credibility is critical. Because, "he touched me while we were in bed," is the only factual dispute in the Brennan part of the case. If that 1 or 2 believe Mark, then the rest comes down to group dynamics during deliberations. If the majority of the jurors were favoring the prosecution at the initial statement, then the case is over. If a majority favor the defense, then those same "open-minded" jurors will change their mind again during deliberations, and it will be an acquittal. As the tea party phenomena demonstrates, a party of "dedicated no" in a proceeding that needs to be unanimous changes the whole process. The "majority" must literally negotiate with a brick wall. If there are more than a few jurors of dedicated no's, then the majority will eventually cave to the intransigent. (And no can mean either verdict--just a verdict against the prevailing majority). If there is one "no," that juror will cave; or in the rare case, one will hang the jury.

    "I would think that a good summary for the prosecution would be to ask if the jury thought that Mark Bukowski was that good of an actor, and that he was just acting for money, in spite of all of the endless child rape crimes committed by Catholic priests."

    I say this as a lawyer, and your argument is as good as any, but this type of case is one where counsel arguments are unlikely to be a deciding factor.

  8. I love your insights, kopride.

    However, its pretty disturbing to see how bad the system is, with people making decisions based on their preconceived notions regardless of what is presented at the trial, and group dynamics (and wanting to get back to their jobs) playing such an important part in the process.

  9. "However, its pretty disturbing to see how bad the system is, with people making decisions based on their preconceived notions regardless of what is presented at the trial,"

    Like democracy and direct elections, it is a terrible system; but it is the best system there is. What would be worse is a single "judge" or judges who supposedly will be objective. if you look at the number of 5-4 SCOTUS decisions, you see that the same phenomena occurs with judges as well. They have a particular political or economic philosophy and tend to reach decisions and write opinions that reflect that narrative, pulling nuggets from prior opinions and the record that support their view. In general, juries reflect societal values and norms. Fifty years ago, it would have been very difficult to convict any priest because the general societal attitude was that priests were virtuous. Clearly, that opinion is no longer near universal. In parts of the country, there was a general norm that black people were criminal or suspect. Verdicts reflected that norm. The OJ jury was one that generally distrusted cops and their dealings with minorities; their verdict reflected that narrative. When you see a unanimous SCOTUS opinion, you are seeing a very narrow decision or one that reflects wide societal norms. Generally, child molesters get convicted at a high rate--because our society generally believes children and protects them. This was not always the case. In civil cases, bad baby cases mean very big verdicts even in difficult cases.

    "group dynamics (and wanting to get back to their jobs) playing such an important part in the process."

    Yep, just like a small minority of primary voters and people who can't be bothered to vote affect the ability of our country to govern. Again, its a horrible system, but it is the best among other alternatives. Wanting to get back to work or a free lunch does affect how the jury room works. It can mean that holdouts give up earlier or hold out longer.

    I didn't used to believe this. It was only watching lots of focus group juries that I started to see how impotent lawyers really are at persuading people. The trick is eliminating unfavorable jurors that are hostile to your cause; and constructing a narrative that will appeal to broad societal norms and the jurors likely to be selected. For example, the arguments for or against gay marriage haven't changed. What has changed is societal attitudes; and it is very dependent upon regional demographics.

    1. Great answer, even though I don't like it.

      I have what I think would be a better approach in He-said/he-said trials like Brennan’s and that of other child rapists/

      Both sides take a lie detector test. If the lie detectors show that Brennan is found to be lying, and Bukowski is telling the truth, then maybe it doesn't even go to trial. If it does, then things are made much more difficult for Brennan to get away with it just because the Catholic church is willing to pay lawyers exorbitant sums to try to keep him out of jail.

      The whole system depends on “the truth, the whole truth, and nothing but the truth, so help me God” and the Catholic church is proving that the alleged leaders of God defiantly lie to save themselves, and they are leading their followers by showing them that they should do the same. A lot of people lie in court, and Catholics now have permission from their leaders.

      Cardinal Bevilacqua was absolutely defiant as he lied under oath during the grand jury. It would have been interesting to see if he passed a lie detector test.

      Also, in my system, if you lie and are caught, the penalty for perjury isn’t two years. Its much higher, and should be as high as that of the criminal you’re protecting.

      Lie detectors aren’t perfect, but they are more accurate than Catholic priests.

    2. There are starting to test certain MRI machines that can detect the brain imaging of lies. It is still pretty primitive. Polygraphs are generally considered placebos. People have to believe that they work in order to be effective. They are not admissible in court because the science doesn't support them. The problem with lie detection is that most start off with subjects who are told to intentionally lie in order to validate allegedly deceptive patterns. And the examiner essentially makes a subjective interpretation of the data against the patterns seen in the test subjects who are told to lie. It's like, this tracing looks similar to the tracing of a college student test subject who was told to intentionally lie about something. It's pretty weak.

  10. What about how long the trial is running? Ralph wrote that the jury was showing signs of daze- if the Defense goes on for weeks, isn't there a chance the prosecution case will be lost in the growing ennui of the jury?

    No offense to all the lawyers, but I think in today's world there is more of a chance for "justice" in the media.

    I look forward to the movie about this trial, as that's where the whole world will get the real story. Ralph, I hope you get a deal for the film. You sure deserve it.

    Now, who could play what roles...?

  11. I hope that they'd be able to solve this as soon as possible. Thank you very much.
    houston criminal defense attorney


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