By John P. Martin
Philadelphia Inquirer
November 19, 2011
http://www.philly.com/philly/news/20111119_Bevilacqua_ordered_to_appear_for_closed_testimony.html
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| Cardinal Anthony J. Bevilacqua is a key figure in clergy trial. |
A Common Pleas Court judge said Friday that she expected Cardinal Anthony J. Bevilacqua to testify about how the Archdiocese of Philadelphia handled years of child sex-abuse allegations against priests, but that the 88-year-old prelate would answer prosecutors' questions in private rather than in open court.
Ending five months of legal wrangling, Judge M. Teresa Sarmina ordered the cardinal to be ready for a videotaped deposition Nov. 28 at his residence at St. Charles Borromeo Seminary. The questioning could last for days.
Bevilacqua's lawyers had asserted that the cardinal has dementia and would not be a competent witness. Sarmina stopped short of declaring him fit but said she had reviewed his medical records and expert evaluations, and saw no reason he should not testify.
She said she planned to question him in the morning before the deposition began.
"I will be examining the cardinal myself, and I'm anticipating I will be making a finding of competency," Sarmina told lawyers during a conference in the case of Msgr. William J. Lynn, a former top aide to Bevilacqua.
The decision sets up a historic, albeit sealed, showdown between the cardinal, who led the region's Catholics for 15 years, and prosecutors who argue that the archdiocese, under his leadership, routinely concealed the sexual abuse of children by shuffling predator priests among parishes and failing to tell the members of those churches. The cardinal has not been charged, but prosecutors say his testimony is critical to their case against Lynn, the former secretary for clergy, who is accused of conspiracy and child endangerment in the placement of abusive priests in positions that gave them access to victims.
Prosecutors want to question Bevilacqua to bolster their contention that Lynn's recommendation to transfer two priests to parishes with schools after they were accused of molesting boys reflected a broader pattern and longtime practices of the archdiocese and its leaders.
Bevilacqua has testified on the topic before. Starting in June 2003, the year he retired as archbishop, Bevilacqua appeared 10 times before a Philadelphia grand jury examining clergy sex abuse. During that testimony, he often deflected questions about specific cases of abuse or said he didn't recall details.
That investigation ended with a searing, nearly 500-page report criticizing the cardinal and the archdiocese but charging no one. The bulk of his testimony remained sealed until this year, when prosecutors attached it to a public filing in Lynn's case.
Bevilacqua lives at an archdiocesan-owned home off City Avenue and has remained out of the public eye, particularly as authorities launched their second investigation in a decade into child rapes by priests.
He was not called this year before the grand jury that recommended charges against Lynn and three former and current priests. Instead, a longtime lawyer for the cardinal testified in January that Bevilacqua suffered from dementia, cancer, and depression.
The lawyer, William Sasso, said the cardinal could not focus and had struggled to recognize him. "He expresses frustration at being unable to remember things or articulate thoughts," Sasso testified.
Acknowledging Bevilacqua's age and frail health, prosecutors asked for permission to question him in a videotaped deposition instead of waiting until their trial begins in March. Assistant District Attorney Mark Gilson asked for the proceeding to be in open court, telling the judge it was important to "knock down these walls" that long shielded clergy sex abuse.
Brian McMonagle, the criminal defense attorney hired by Bevilacqua this summer, argued that any such proceeding should be private, contending that prosecutors were unfairly trying to force the frail cardinal to "walk the gauntlet" of a media spotlight by calling him to the stand.
He also cited a rule in the Pennsylvania Code that says only judges and attorneys need attend a deposition. The same code suggests there is no guarantee the public will hear Bevilacqua's forthcoming testimony. It says the deposition will not be made public record unless it is introduced in a court proceeding.
Much of the evaluation and debate over the cardinal's competency and testimony has occurred in private.
McMonagle gave the judge two years of his medical records in August. On Thursday, prosecutors gave Sarmina a report based on their expert's examination of Bevilacqua. Those records are not included in the public court filings and the judge has issued a gag order preventing the lawyers from publicly commenting on the case.
On Friday, Sarmina spent 15 minutes discussing the matter in her chambers with McMonagle and Assistant District Attorney Jacqueline Coelho before announcing her decision.
The prosecutors won't be the only ones firing questions at the cardinal. Lynn's lawyers, Thomas Bergstrom and Jeffrey Lindy, said they also plan to examine Bevilacqua.
That's one reason his testimony could last hours or days, the judge said.
"I can't speak to the cardinal's stamina," Sarmina said. "It could be a few hours on Monday, a few hours on Tuesday, a few hours on Wednesday, a few hours on Thursday."
Lawyers for the other defendants were unsure Friday if they would also participate in the deposition. Awaiting trial with Lynn are two priests, the Revs. Charles Engelhardt and James J. Brennan; former priest Edward V. Avery; and a former schoolteacher, Bernard Shero. Each faces charges of molesting a boy in the mid-1990s.
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