Tuesday, January 28, 2014

D.A. Says Lynn Reversal Sends Out "Dismal" Message

By Ralph Cipriano
for Bigtrial.net

Philadelphia District Attorney Seth Williams yesterday appealed the reversal of the conviction of Msgr. William J. Lynn to the state Supreme Court.

Lynn, the Archdiocese of Philadelphia's former secretary for clergy, was convicted on June 22, 2012 by a jury of one count of endangering the welfare of a child. He was the first Catholic administrator in the country to be sent to jail for failing to control an abusive priest under his supervision.

On Dec. 26, 2013, Lynn's conviction was reversed by a unanimous opinion from a panel of three Superior Court judges, who said that the state's original child endangerment law did not apply to Lynn. The law applied only to adults who had direct contact with children, such as parents, teachers or guardians, the Superior Court said. The law didn't apply to Lynn, who had no contact with children, but was a supervisor of abusive priests. The law was amended in 2007 to include supervisors such as Lynn.

 In a 35-page appeal petition to the state Supreme Court, the D.A. complained that the Lynn reversal sent out a "dismal" message in this "high-profile case," namely that "victims of child sexual abuse at the hands of pedophile priests who reluctantly come forward may do so in vain."

The D.A. argues that if the Lynn reversal goes unchallenged, the state will no longer be able to protect future victims of child abuse, even under the amended child endangerment law, because of the Superior Court's overly broad language and "misapplication of law."

"Thus, as long as this published Superior Court decision stands," the district attorney wrote, "the 2007 amendment cannot be relied on to protect children. The problem is not in the statute," the petition says, "but in the Superior Court's wholesale departure from the rules of statutory construction."

The D.A. charges the Superior Court opinion was written "in a manner that edits the [child endangerment] statute to insulate Lynn and people like him from criminal liability. It is a problem that will certainly continue unless this [state Supreme] Court intervenes."

Lynn, the D.A.'s petition says, "was a high-ranking Archdiocesan official specifically responsible for protecting children from pedophile priests. Instead, he relocated them, as part of a general scheme of concealment, in a manner that put additional children at risk of being sexually molested."

Lynn was accused of failing to adequately supervise former priest Edward V. Avery, who pleaded guilty to raping Billy Doe, a 10-year-old altar boy.

"The Superior Court, in a published decision authored by President Bender, held that defendant did not endanger the welfare of children," says the D.A.'s petition signed by Hugh J. Burns, Jr., chief of the D.A.'s appeals unit. The Superior Court decision, Burns argues, was based on a "misapplication of law."

Sadly, the D.A. overlooks that the conspiracy alleged by the district attorney was not only soundly rejected by the jury in the Lynn case, but also the trial judge, M. Teresa Sarmina. The jury found that Lynn had not conspired with Avery, or anyone else in the archdiocese, to harm Billy Doe. Judge Sarmina also threw out as unproven two charges that Lynn had conspired with another priest, Father James J. Brennan, to endanger a 14-year-old boy who allegedly was the victim of an attempted rape by Father Brennan.

In response, Thomas A. Bergstrom, Lynn's lawyer, said the district attorney's petition was "completely dishonest from top to bottom. It's crazy."

"The D.A. is claiming that they [the Superior Court] held it was OK for someone like Lynn to knowingly transfer pedophile priests," Bergstrom said. "That's outrageous, it's totally dishonest."

The Superior Court opinion reviewed the child endangerment law, Bergstrom said, and concluded that "the statute didn't apply to Lynn, period, end of story." 

The Superior Court also found that Lynn could not even be charged as an accomplice to Avery, because the evidence in the case was "insufficient to prove that he [Lynn] intended the likely consequences of his actions."

This upset the district attorney, who warned of dire consequences.

"Published error of this nature is always a serious matter," Burns writes about the Superior Court opinion, because it will impact "all future appeals," as well as the "level of prosecutorial discretion."

"An erroneous standard," Burns writes, "may prevent meritorious criminal charges even from being filed. Such tainted precedent can also wrongly negate an unpredictable number of sound convictions."

"The impact is exacerbated by the high degree of national public attention focused on this case," the D.A.'s petition says. "When, as here, the offenders are educational, religious or other kinds of social leaders, they often benefit from an institutional policy of concealment designed to protect that institution and exploit that reluctance. Reversal of the conviction in this case calls into doubt the ability of the criminal justice system to hinder such institutional wrongdoing."

In his petition, the district attorney challenged the Superior Court's reading of the original state child endangerment law, which says, "A parent, guardian or other person supervising the welfare of a child under 18 years of age commits a misdemeanor of the second degree if he knowingly endangers the welfare of a child by violating a duty of care, protection or support."

"One who acts in a capacity of protecting children and who supervises another who has contact with those children, is a supervisor of the welfare of children," the petition states. "His conduct was no less 'supervision' because it was accomplished through a subordinate, from whom Lynn was specifically responsible for protecting children against sexual molestation ... 'Supervision' as ordinarily understood is routinely accomplished through subordinates."

In 2007, the child endangerment statute was amended to include "a person that employs or supervises such a person."

The original child endangerment statute, however, does not mention the terms 'actual' or 'direct' when it comes to supervising a child, Burns writes. The Superior Court used both words to define the meaning of the statute.

Burns says those two words may come back to haunt future victims of sex abuse.

"Anyone charged under the amended statute will argue" that a "person supervising the welfare of a child or a person who employs or supervises such a person" must be read to mean a "person directly and actually supervising the welfare of a child or a person that directly and actually employs or supervises such a person."

"Under the Superior Court's erroneous construction even the amended statute would not have applied to Lynn's conduct," Burns argues in the D.A.'s petition to the Supreme Court. "Lynn obviously did not 'employ' pedophile priests, and it is by no means clear that his supervision of them, for purpose of preventing" them from "sexually molesting children, would be considered sufficiently 'actual' or 'direct' under the Superior Court's understanding of those terms."

To Bergstrom, this argument was another example of the district attorney's dishonesty.

"They're the guys who led the charge to amend the statute and because the original [child endangerment] statute didn't apply," Bergstrom said of the D.A.'s office. "And now they saying that the amended statute doesn't apply and the old one does."

"It makes no sense."

Lynn remains free on house arrest after the archdiocese posted $25,000 in bail. He wears an electronic monitoring bracelet on his ankle, and is restricted to living on two floors of the rectory at St. William's parish at 6200 Rising Sun Avenue in Northeast Philadelphia. The monsignor has to check in with his parole officer every week, and needs special permission to visit his doctors or lawyers.


  1. Any law student would not write such a brief the DA has written and has killed many trees in the process of creating a 35 page brief best suitable for the shredder. Such a brief would not only be characterized as "dishonest" but would be returned with many red scribbles from his professor to the chastened law student.

    If I have it right, the DA would rather use Russian style law to convict defendants instead of doing the grunt work thinking over the ramifications in using the revised version of the EWOC law. This is scary as this very same DA would have had Lynn sentenced to jail for the rest of his life without parole.

    Equally culpable is Judge Sarmina. She should have granted the defense a motion to dismiss the EWOC charge against Lynn but she refused to do it not once but multiple times during the trial. Had that been done, the trial would have collapsed on its merits. Sarmina wanted a kangaroo trial in order to give abuse victims a chance to vent and that was not her role to do so.

    Sarmina has transferred over to Civil Court from Criminal Court and it is even scarier to see what she would do in interpreting legal statutes to suit her conception of right and wrong.

    Seth Williams logic is like the mechanic who spends hours trying to shoehorn Ford parts in a Chevrolet to no avail.

    It is time for both Seth Williams and Judge Sarmina to leave the legal profession.

  2. While it's undeniable that Msgr. Lynn's actions led to abusive priests being posted in assignments that provided them the opportunity to prey on victims, it's also clear that the unamended statute was not applicable to persons who did not directly supervise children. To use a "parade of horribles" argument raising the specter of the applicability of the Superior Court's opinion to the new statute (an argument a first year law student could demolish as the opinion goes to great length explaining that its analysis is limited to the unamended statute and is therefore easily distinguished) raises the question whether the office is able to deal with the issue of clergy sexual abuse impartially and professionally. It appears that some in the office have forgotten that law and justice are not synonymous.

  3. Even if he can't win his case, I'm glad he filed it anyway because it does serve to keep getting the message out there that enabling pedophiles prior to 2007 was not against the law but it is against the law now and one can go to prison for doing it.

    I guess the Penn State men are going to get off also because of this case. Even there, it's good for everyone to know that what they did at Penn State was not against the law back then but it is now. And people can go to prison for doing it.

    It's a long, slow journey getting these laws in place to stop this madness against children. It was never going to be easy to stop entrenched pedophiles for crimes which many people find unspeakable. I'm glad the D.A. spoke for the victims and survivors with his appeal today. Let's hope the amended statute will be enforceable going forward.

    1. The problem with the D.A.'s filing is that it potentially and needlessly muddies the water regarding the effectiveness of the amended statute. The D.A.'s appeal erroneously states that the Superior Court decision could hamper prosecution of individuals not directly supervising children under the amended statute. The Superior Court decision is very carefully written to avoid that interpretation, limiting itself to the statute in effect at the time the abuse occurred. The plain language of the amended statute closes the loophole that prevented prosecution of Msgr. Lynn under the current D.A.'s predecessor. As risk of telling you something you may already know, the Constitution prevents enacting laws designed to prosecute people for acts that were not illegal at the time of their commission (ex post facto laws). Therefore the D.A. could not charge Msgr. Lynn under the amended statute. His reaction to this was to ignore his predecessor's exhaustive research regarding the applicability of the old EWOC statute, reversed her decision and brought charges against Msgr. Lynn. The trial judge dismissed the objections of defense counsel during the trial and the jury convicted based on what it believed was the law.

      The issue underlying the Penn State prosecutions is quite different and does not involve the EWOC statute. The testimony of Penn State administrators before the Grand Jury mischaracterized their reaction to evidence of Sandusky's attack on a young boy in the showers of the football team's practice facility. If it's found that their testimony was knowingly false they could be convicted of perjury.

    2. Thank you for this. I didn't know there were perjury charges that might hold the Penn State defendants accountable. Nor did I realize that the amended statute may have been thrown into confusion with the appeal to the PA Supreme Court. If that's the case, I hope the Court takes the case to clarify it. I had thought the Court would probably pass on it. Hopefully the matter can be straightened out so that Grand Juries will know what the current law is. Thank you again.

  4. "At risk of telling you something you may already know, the Constitution....."
    Don't worry, Gerard, in responding to bigots like SNAPpy Sarah, that risk is negligible.

  5. What a scam, the DA spoke for himself and his office full of bigoted and arrogant persecutors today, not for anybody else. Wise up, already.

  6. Appeal is being filed due to need for cover by the DA. Once appeal rejected by the Supreme Court, then this will be shuttled over to the warehouse where boxes of documents will gather dust and never read.

    Same DA filed appeal against Judge Sarmina for revocating the death penalty in Officer Boyle's murder. Again, this is cover designed to appease the FOP and the Boyle family.

  7. Mr. Cipriano - Do you have a link to the Petition for Allocatur filed by the Commonwealth?


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