Tuesday, August 13, 2013

Defense Lawyers Allege Prosecutorial Misconduct, Judicial Errors

The judge who put two innocent men in jail
By Ralph Cipriano
for Bigtrial.net

Lawyers for Bernard Shero and Father Charles Engelhardt have filed legal papers claiming their clients were wrongly convicted due to judicial errors and prosecutorial misconduct.

The lawyers made their claims in separate documents filed on Aug. 1 with Judge Ellen Ceisler, both entitled, "Defendant's Statement of Errors To Be Complained Of On Appeal."

Michael J. McGovern, writing on behalf of Father Engelhardt, asserted that Judge Ceisler should have tossed a conspiracy charge against Father Engelhardt a lot sooner than she did. During the trial, the judge overruled defense objections to the charge that Father Engelhardt had conspired with Father Edward Avery to rape Billy Doe, the victim in the case, when he was a 10-year-old altar boy.

After the jury delivered its verdict and convicted Engelhardt of conspiracy, the judge at sentencing announced she was going to throw out the conspiracy charge as unproven. But that decision came after the judge had given "lengthy and repetitive jury instructions on conspiracy and accomplice liability thus unduly emphasizing" the conspiracy charge to the jury, McGovern wrote. The conspiracy charge took up 10 out of 44 pages of jury instructions, and one page of a two-page jury verdict sheet that listed "four separate charges of conspiracy and accomplice liability," McGovern wrote.

Michael J. McGovern
By letting the jury deliberate the conspiracy charge, McGovern wrote, it made it "impossible to determine whether the resulting verdicts against the defendant were based on the erroneous theories of conspiracy and accomplice liability."

This was "an error which the court conceded post-trial," McGovern wrote, when the judge tossed the conspiracy charge. The judge's actions may have resulted in Engelhardt not receiving due process or a fair trial, McGovern wrote.

On Jan. 30, a jury convicted Father Engelhardt of 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. On June 12, Judge Ceisler threw out the conspiracy charge, but sentenced the priest to 6 to 12 years in jail.

McGovern also took the judge to task for allowing Dr. Gerald Margiotti, a pediatrician, to give "speculative hypothetical" testimony to the jury that Billy Doe's boyhood complaint of testicular pain was consistent with sexual abuse, even though the pediatrician had never examined Billy Doe, and was not qualified as an expert.

McGovern said the judge also allowed Assistant District Attorney Mark Cipolletti to "commit prosecutorial misconduct by making highly inflammatory, unsupported and prejudicial statements and misstatements before before the jury, including hypothesizing as to the existence of other victims of sexual assault by [Engelhardt] and suggesting there are countless others known or unknown."

In his summation to the jury, Cipolletti was allowed to imply to the jury that "he had knowledge that there are other sexual assault cases to be brought against [Engelhardt] and implying that the defense counsel was lying, deceitful and manipulative," McGovern wrote.

Here's what the prosecutor said that McGovern objected to: "What he [McGovern] didn't tell you was no child, no student has come forward yet." McGovern questioned whether the judge should have granted a mistrial, or given Cipolletti a cautionary instruction.

McGovern also brought up the court crier's reading of an extra offense against Engelhardt, rape of a child, that the priest was not charged with. This error "falsely prejudiced" the defendant, McGovern wrote.

The defense lawyer criticized the judge for not allowing Billy Doe's "medical, mental health, hospital and drug and alcohol treatment records" to be brought in as evidence during the trial, "thereby denying [Engelhardt] "due process and a fair trial."

Since Judge Ceisler closed all pre-trial hearings and motions in the case to the press and public, this was the first mention that the defense had sought Billy Doe's medical records. You can bet the defense will go after these records in the civil case, where Billy Doe is suing the archdiocese for damages.

McGovern also wrote Judge Ceisler that he will be asking on appeal "whether the trial court erred and abused its discretion in refusing to grant a continuance or issue a bench warrant for a subpoenaed witness," namely Billy Doe's older brother. According to McGovern, the witness "failed to appear at court ignoring his subpoena."

During deliberations, the jury asked Judge Ceisler, "Do we know why" Billy Doe's older brother did not honor the subpoena?" The judge, according to McGovern, responded with "an erroneous and prejudicial answer over defense objection that there was no evidence" that the brother had "received a subpoena."

Finally, McGovern plans to raise on appeal the judge's decision to allow the prosecutor to question Ed Avery "concerning four unrelated alleged accusations of abuse where there was no evidence presented at trial." These allegations were "totally irrelevant and unrelated to the charges against [Engelhardt], including conspiracy, and served only to inflame the jury," the defense lawyer wrote. McGovern faulted the judge for overruling defense objections and allowing the prosecutor to question Avery about the other four allegations, when the judge stated it was "proper impeachment" of a witness.

On Jan. 30, a jury convicted former Catholic school teacher Bernard Shero of rape of a child, involuntary deviate sexual intercourse with a child, endangering the welfare of a child, corruption of a minor, and indecent assault. On June 12, Judge Ceisler sentenced Shero to 8 to 16 years in jail.

In his "statement of errors," defense lawyer Burton A. Rose, claimed that Judge Ceisler had abused her discretion by allowing the prosecution to present evidence about Shero's "alleged inappropriate behavior with other school children. Rose also objected to Ceisler's decision to allow the prosecution to present as evidence Shero's suicide note," which "did not contain any admission of guilt," the lawyer wrote.

Burton A. Rose
Rose, as did Shero, faulted the judge for allowing Dr. Margiotti to testify, as well as allowing the prosecutor to cross-examine Ed Avery regarding allegations of sexual abuse involving other boys.

Rose also faulted the judge for allowing the prosecutor to misstate the evidence in his closing statement to the jury regarding the number of absences Billy Doe had on the final marking period of his sixth grade report card. Billy Doe testified that after he was raped by Shero in sixth grade, he became seriously ill and missed a lot of school. 

Billy Doe's report card for the time period in question, however, showed zero absences. In his closing statement to the jury, according to Rose, prosecutor Cipolletti told the jury that Billy Doe was absent 3 1/2 days.


  1. This comment has been removed by a blog administrator.

  2. I would think the lack of a preliminary hearing would be an appeal issue, these men were indicted solely on the basis of the DA's grand jury report handwritten by XDA Sorenson, this grand jury was described as the Daily News reading & hoagie and pizza munching group that only had the prosecution's version of events to recommend those indictments. Judge Hughes (excuse me, Xjudge Hughes) rubberstamped that report as "fact" and held these men for trial denying them the right to the preliminary hearing. Murderers get preliminary hearings, but these men were denied their basic rights from the first stages of this prosecution.

    This prosecution was permitted throughout the process by the various judges to take several shortcuts in their concerted effort to convict the Monsignor in this "landmark case", may the higher court see this prosecution for what it was, a vendetta that has put innocent men behind bars for crimes against [Billy Doe] that simply never happened.

  3. Common sense might tell you that reading out a "nonexistent rape charge" at the outset of the trial could prove to be a little prejudicial against a defendant such as Father Engelhardt. Oh, the judge did say she was sorry about the mistake, that's comforting. I won't touch the conspiracy issue as the entire scenario presented in the grand jury report was an absolute crock

    His collar was the bulls eye and the prosecution was given free rein to do whatever it wanted to to put that innocent priest in prison.

    On a lighter note, I wonder which judge(s) will feel the heat for allowing that criminal that shot the police officer yesterday to roam the streets of Philadelphia. Perhaps there is something seriously wrong with our system of justice in the city of Philadelphia.

    Oh and did I fail to mention that Billy Doe had not 1, not 2 not 3 but 4 separate Philadelphia cases either dismissed and/or plead out with no time served while he was being prepped for these trials. The 4 miraculous criminal dockets of the infamious "Billy Doe" that have now disappeared from sight match the exact number of different bizarre assault stories he told over the past 4 1/2 years involving Fr. Engelhardt.

  4. one more tidbit, throughout the trial, a retired judge hired by the DA as a consultant was allowed to stroll into Judge Ceisler's courtroom at will throughout the most recent trial. In a recent article, One sitting judge describes this retired judge as no more than a "greeter, no specific duties but collecting a paycheck and benefits at the expense of the city taxpayers at a time of serious budget constraints.

    However, the freedom with which that judge walked into that courtroom including access to the back room is suspect, perhaps he was doing the bidding of the prosecution to ensure those jurors were pursuaded to convict those innocent men. Once again, no physical evidence, mountains of contradictory evidence presented by the defense during the trial and yet the bizarre guilty verdicts were rendered by the jury, the still totally silent jury.

  5. This comment has been removed by a blog administrator.

    1. didn't think pottery sculpting paid that well?

      Trips to Puerto Rico, St. Lucia for Seth's favorite criminal this year. Life must be good for an individual who should not have been allowed to leave the country while petitioning for a probation program that he initially declined. Family + connections have no limits in helping a drug addict get a free pass in life.

    2. Does anybody realize our beloved Billy dopes uncle works with the fraternal order of police for Philadelphia. That is the only reason this case was carried out. He even wrote a thank you to people, including our wonderful
      DA. There are many innocent men in prison because of this lying [weenie]. Fortunately for him, he already got a little payout which probably paid for his wedding and his new home. Good luck with that BG and your family, you are suffering in other ways.

      Read more at http://www.bigtrial.net/2013/08/defense-lawyers-allege-prosecutorial.html#aMjledV6BDBzXJFg.99

    3. wonder if the letter was in his native slang or someone wrote it for him using proper english. maybe the creepy teacher (as stated on the stand) from his 2nd or 3rd high school got a little money to help out his former prize student.

  6. How does he sleep at night?

    1. I'm sure pills help.....

    2. He's got corrupt doctor's on the payroll too.

      Another question for you -

      How do the jurors who found two innocent men guilty and took away their freedom sleep at night?

    3. I also wonder the same thing about the 100 plus priests who were named in both grand jury reports, i wonder how the enablers and abusers sleep knowing they have destroyed God only knows how many lives, what is their formula for abusing and betraying the faithful ?

    4. so you justify putting away an innocent priest like Father Charles Engelhardt for a crime he didn't commit because the archdiocese and it's leadership didn't control priests four or five decades ago, this was a man with close to 50 years of service to his religious order with an impeccable reputation and he's to pay for the sins of the long ago dead priests that the prosecutors were unable to bring to trial.
      This is how our society "evens the score" by prosecuting and wrongly convicting an innocent priest.

      The kid was a con artist and it worked, but hopefully the appeal process will bring the truth to light.

  7. Who is the retired judge who had unfettered access to Ceisler's court?

    1. I believe it's best you google Philadelphia Magazine/Seth Williams and pull up and read the lengthy article from Fall 2012 detailing the apparent chaos that exists within the District Attorney's office in Philadelphia. You will find the name of this particular retired judge who made numerous visits to Judge Ceisler's courtroom during the most recent trial, including while the jury was deliberating the fate of those 2 innocent men.

      As for Josie's question about the retired DA, I don't believe that the "Billy Doe/Gallaghers" and the retired assistant DA are related, I only know that the retired DA early on prior to the first trial when all of the defendants were involved before the separate trials were granted for Fr. Engelhardt and Bernard Shero that the retired asst. DA when asked, said he had no file related to this assault accusation.



  8. Is Charles Gallagher III, retired deputy DA related to the Billy Doe Gallaghers?? There was, as many know, some collaboration between the DA's office and the SNAP people (covered nicely by the mediareport.com -check out the Aug 11, 2011 entries.)

  9. Does anyone know where the 100 plus priests that were named in the Phila Grand Jury reports are ?

  10. Is ron marsico the head of the Pa Judiciary committee related to the marsico who is employed by Greenlee Associates the lobbying firm that represents the archdiocese of Philadelphia and there is a guy d. marsico who was a former priest from PA that was removed, should this be investigated ?

  11. The DA's star witness:



    1. WOW.

      Everybody needs to see those.

      Who do you think PAID for all of that?


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