How Two Innocent Men Wound up in Jail
By Ralph Cipriano
Judge Ellen Ceisler just sent two innocent men to jail. Even people inside the district attorney's office know that Father Charles Engelhardt and Bernard Shero are innocent. It should have never gotten this far. Billy Doe told an unbelievable story about a former altar boy being passed around like a pinata among three rapists. It's an x-rated fractured fairy tale that makes no sense in any of its various versions. Billy Doe should have been laughed out of the D.A.'s office. Instead, when Billy told his improbable tale, the D.A. and a couple of gullible prosecutors bought it. Whether they were blinded by misguided empathy, political ambition, or hatred of the church, it doesn't really matter. It was as if they all got high on whatever Billy was peddling. It was a story with no corroborating witnesses or evidence, just the tales of a drug-addled goofball who had been in and out of 23 drug rehabs in the past 10 years and had once bragged to a drug counselor that he was a natural salesman. In court he proved his point; perhaps he'll switch from selling drugs to selling used cars. The end result is that two innocent men are sitting in jail today. When a travesty of this magnitude occurs, there's always plenty of blame to go around. In today's post-mortem, we're going to try hard not to miss anybody. THE FORMER D.A.'S OFFICE There is circumstantial evidence that indicates the regime under former District Attorney Lynne Abraham took a look at Billy Doe's story, realized it was nonsense, and decided that the Billy Doe file should be thrown in the trash can where it belonged. But that never happened, and we don't know why. There is a puzzling year-long gap in the official record of the case between Jan. 30, 2009, the day Billy phoned in his report of abuse to the Archdiocese of Philadelphia and Jan. 28, 2010, when Detective Drew Snyder drove out to Graterford prison to yank Billy out of jail, and bring him down to the district attorney's office for questioning. How can this gap be explained? The people who know this back story continue to remain silent. That's how this kind of travesty can happen. And how two innocent men can wind up in jail. Maybe somebody should put them all under oath, and ask what happened. THE CURRENT D.A. Seth Williams is responsible for this travesty of justice. We have been trying to get some answers from him, but so far he's stonewalled. Three key questions remain unanswered. As chronicled on this blog, the district attorney's self-described "historic" prosecution of the church was flawed from day one. On Jan. 28, 2010, Detective Drew Snyder drove Billy Doe to the D.A.'s office for questioning. Assistant District Attorney Mariana Sorenson was on hand, eager to begin her work. Billy Doe's parents, a Philadelphia police sergeant and a nurse, were allowed to sit in on that interview. The usual practice of the district attorney's office, and the Philadelphia police department, would have been to interview an adult complainant separately. Who knew, on day one of the investigation, if one of the parents may have been abusing the boy? People I trust in law enforcement say interviewing the victim in the presence of his parents, in violation of the usual procedures, is indefensible. For months, the district attorney has refused to discuss this breach of procedure. It can't be explained. That's why the D.A. remains silent on this topic. He hopes that people will stop asking the question. The "investigation" of the church was also a travesty. The suspects were rounded up, and the facts of a kangaroo court known as the grand jury were rewritten to fit an official story line. An intellectually dishonest and error-filled grand jury report was then trumpeted as gospel by the press. That grand jury report still sits online at the D.A.'s website, riddled with more than 20 factual errors. It's still the only official version of what happened. On Wednesday, when Engelhardt and Shero were sentenced, I asked a smiling Assistant District Attorney Manos how she could explain away all those errors in that grand jury report. Didn't the D.A. have a responsibility to tell the truth? Manos kept smiling and walking and saying nothing. Meanwhile, Tasha Jamerson, the D.A.s spokesperson, kept telling me my time was up. The D.A. can't answer that question about all those mistakes in the grand jury report. That's why he hopes it all goes away. Another question remains: how could one district attorney, Lynne Abraham, and the 2005 grand jury look at the state's child endangerment law, and put in writing that Msgr. William Lynn, or any Catholic official at the archdiocese, could not be prosecuted for child endangerment because the law didn't apply to them. And how could another district attorney, Seth Williams, and that 2011 grand jury, look at that exact same child endangerment law and decide that Fathers Lynn, Avery, Brennan and Engelhardt, and former teacher Bernard Shero, could be prosecuted? I posed that question in National Catholic Reporter a few weeks ago. The district attorney refused to answer. What's amusing is that both contrary opinions from the D.A.'s office probably emanated from the same appeals lawyers adept at legal gymnastics. The D.A. needs to explain how this flip-flop occurred and why. OFFICIAL SECRECY AND A PASSIVE PRESS The early judicial proceedings in the investigation of the church were shrouded in secrecy. The grand jury did their work behind closed doors. Judges issued a series of gag orders trampling on the rights of the defendants and their lawyers to freedom of speech. The press corps employed a discriminatory self-censorship policy that allowed the accused to be hung out to dry and have their character assassinated on a daily basis, while the alleged "victims" were granted a cloak of anonymity, all in the name of fairness. It's a misguided policy that needs to be re-examined. The press didn't protest one gag order after another. The result was only one official version of the "historic" prosecution of the church, namely that dishonest grand jury report riddled with factual errors. We in the press didn't protest when the judge in this last abuse case, Ellen Ceisler, ramped up the secrecy by sealing all pre-trial motions and closing all pre-trial hearings. That's how people get railroaded. It takes place under the cover of darkness. THE SINS OF THE CHURCH As rightfully exposed by the 2005 grand jury report, the Catholic Church in this town has blood on its hands. The secret archive files of the archdiocese contained so many revolting deeds covered up by two corrupt archbishops, that people rightfully wanted to see some men in collars wind up in jail. Sadly, they got the wrong guys. During jury deliberations in the Lynn trial, one TV reporter amused the press corps by loudly proposing that a search party with shovels be sent down to the cemetery to dig up the body of Cardinal Anthony Bevilacqua, and drag His Eminence to court, so he could finally be brought to justice. As one detective told the mother of Bernie Shero the day he was arrested, I didn't want to arrest your son, I wanted to arrest Cardinal Bevilacqua. There are some conspiracy theorists who insist that District Attorney Seth Williams must have struck some kind of a deal with church leaders, that if they handed over Msgr. Lynn, the prosecution of the archdiocese would cease. It's an interesting theory that makes some sense. At one point, all the air did go out of the tires of the prosecutorial bandwagon, with no explanation. If men in collars were going to be prosecuted for boundary violations, no bishop was safe. They were all at risk. Then, the witch hunt suddenly ended. Maybe there was a deal. Sadly, we may never find out. THE VICTIMS' LOBBY AND THE CULT OF VICTIMIZATION It's time to deal with the victim's lobby. You know, the folks from SNAP, the guys and gals who show up at every abuse trial with ribbons pinned on their chests. The people who comment so often on this website. I am actually fond of some of them. They include men and women who have suffered real abuse, or have loved ones who have suffered. Nothing any of us can say or do can make it right. When I hear their stories, who cannot be moved? However, every "victim" who tells a tale of abuse is not necessarily sainted the minute he opens his mouth. Every new abuse trial has become a forum for victims to relive their ordeals, and root against the men in collars, like a roving lynch mob, so they can extract some misguided measure of revenge from somebody they don't even know. It's a cult of victimization, a mob mentality that's currently sanctioned in this country, and certainly alive and well in Philadelphia. It's the reason the press won't print the names of sex abuse "victims" while they systematically destroy the reputations of the accused. It's a new sacred cow that will only produce more Billy Does. It's why innocent men wind up in jail. Father James J. Greenfield, a man who has settled 39 complaints of sex abuse, talked about that sacred cow in court Wednesday. Greenfield is the head of the regional province of the Oblates of St. Francis De Sales, of which Father Engelhardt is a member. He talked in court about how in a country where we just elected an African-American president, a new prejudice has been born, against every man wearing a priestly collar. The presumption with priests is, guilty until proven innocent. Judge Ceisler, of course, instantly shut Greenfield down. She didn't want anybody talking truth on a day when she was dispensing justice. So, to all you victims out there, you've won. The abusers will never again get away with it the way they used to, and neither will their employers. But the pendulum has swung so far the other way that now they're putting innocent men in jail when a junkie criminal poses as a victim. Enough already. THE PROSECUTORS There was an ugly edge to this trial. Prosecutors know how to destroy ordinary citizens who didn't go to law school. They know how to win arguments. They know how to make the rest of us look stupid. In this case, the lead prosecutor, Assistant District Attorney Mark Cipolletti, used those tactics against a hapless archdiocese social worker, and a bunch of veteran Catholic elementary school teachers who had no reason to lie. A trained legal pugilist took turns beating up a bunch of middle-aged women. It was sickening to watch. The prosecutors played a brutal game here. They know how to shred a witness. When the evidence is lacking, they know how to invent a story-line in a closing argument, like a grooming campaign by the defendants, out of thin air. Prosecutors also know how, when you don't have the facts, to put a picture up there of a helpless 10-year-old altar boy, and then appeal to raw emotion. In this case, those tactics were misplaced. And a prosecutor played games with people's lives. The lead prosecutor in this case, and the district attorney both expected to lose. It was a throwaway, so why not go for broke, push the edge and see what happens? What happened, to everyone's shock, was that the jury bought it. Lives were destroyed, and innocent families devastated. Prosecutors were allowed to play law school games under the watchful eye of a judge more concerned about breaking for lunch at the right time, and sending the jury home at a reasonable hour, rather than justice. Sickening. THE JURY The jury in this case was simply watching a different trial than the one I saw. As a group they did not impress. Many times, members of that panel seemed to be dozing or nodding off. The one time they did pay attention though was when Billy Doe took the stand. Grown men wiped away tears. I, however, had dry eyes; I did not believe Billy Doe. I felt the same way when I heard him at the Lynn trial. At that time, I had no reason to believe he was a stone-cold liar. At the Lynn trial, I heard real victims of abuse tell their stories. A doctor, a detective, and a nun stand out in my mind. As you listened to their stories, you felt the pain. When Billy Doe spoke, you felt nothing, and what you saw was an immature con man trying to pull off a hustle. At the Lynn trial, after Billy Doe left the stand, one of Billy's civil lawyers asked me what I thought of his boy. You really want to know, I said. I don't believe a f--ing word he just said. It was just a gut feeling from a guy whose heard stories all his life, and tried to figure out which ones were B.S. But whether you believed Billy Doe was telling the truth or not, you could not convict Engelhardt or Shero based solely on Billy Doe's story. It was a story that defied logic and common sense. There were far too many factual discrepancies in the various versions Billy Doe told to send anybody to jail. There was no evidence or witnesses that supported any of Billy's stories. In fact, almost all of the evidence gathered by the district attorney's own detectives contradicted Billy and his stories. The defense case was based almost entirely on the findings of the district attorney's own detectives. The jury, however, bought it. To prove I didn't lose my mind, I will reprise the comments of an alternate juror, a young woman in her 30s, who saw exactly what I saw. And what other reporters saw. She also had some unique insight. "I was like, 'Are you serious?' I couldn't believe it," the alternate juror told me when she heard the verdict. "I thought for sure they were going to vote not guilty because there was absolutely no proof that these men had done that." To the alternate juror, the guilty verdict was "incredible, "insane," and a "tragic miscarriage of justice." The alternate juror felt sympathy for Billy. "He's a terribly troubled young man," she said. But, she added, "Every answer seemed so convenient and so processed to me. It just didn’t feel genuine. It didn't feel like a young man trying to get right. It felt like a young kid trying to get out of trouble." "I have kids lying to me every day," said the woman, who teaches elementary school. "I felt like I was watching somebody trying to get out of trouble." He did get himself out of trouble. When the D.A. busted Billy out of Graterford, he was a junkie criminal in jail for a parole violation. After he became the district attorney's star witness, Billy Doe got busted twice for drug possession, including one bust where he was caught with 56 bags of heroin. But thanks to a smart criminal lawyer, the 56 bags of heroin was thrown out of court as evidence. And that last drug bust, after 9 continuances in 18 months, disappeared because the D.A. let Billy into an accelerated misdemeanor program that he ordinarily would not be entitled to. Today, Billy Doe is a free man, off probation, and that last drug bust is about to be expunged from his record. Why did the jury in the Engelhardt-Shero case buy Billy's story, without any evidence to support it? I have a theory. Thanks to the media and that 2011 grand jury report, it was an existing story line that everybody knew: innocent victims; predator priests. So the jury bought into the prevailing wisdom. Who needs evidence? Guilty as charged. The one juror that I did talk to offered a frightening look into the jury's mindset. "When you're on drugs, a drug addict will tell you a lot of stories," the juror told me. So she gave Billy Doe a pass when his story changed every time he told it. Because he was a consistent drug addict. When the Lynn jury announced its verdict in 2012, several jurors gave interviews. The jury foreman went on TV the next morning to field questions from the media. This jury, however, was did not want to talk to the media. "Not this group," the juror told me with a smile. "They were flying out of here" Their silence was unusual. I stopped by the home of the jury foreman last weekend to see if she could shed any light on what went down in that jury room. The jury foreman came to the door scowling. She muttered that I had no business being on her property. Then, looking away, she closed the door. I left wondering what her problem was. You were the foreman on a high-profile Philadelphia jury trial. Why can't you talk? THE DEFENSE LAWYERS Here's the scouting report on Billy Doe. Whenever he is caught in a lie, he has a habit of lowering his head, and mumbling before he shuts down. That's the behavior Michael J. McGovern, Father Engelhardt's lawyer, saw on the witness stand on Jan. 16th when McGovern confronted Billy Doe about his claim to have been a member of the bell choir maintenance crew back when he was a fifth grader at St. Jerome's. Billy Doe claimed that Father Avery had accosted him in church because little Billy was the lone member of the bell choir maintenance crew who was putting the away the bells after a concert. In this excerpt, we see Billy on the ropes before he is saved at the bell by a timely objection from the prosecutor: Q. I thought your testimony was that he [Avery] came up to you when no one else was around? A. Yeah. He pulled me over to the side. There were still people in there but no one around in earshot distance. Q. Mr. [Doe], would it surprise you that there were no fifth grade members of the bell maintenance crew, none, zero? There never was. Would that surprise you? A. A little bit. Q. Would it surprise you there was never a sixth grade member of the bell maintenance crew? A. Kind of. Q. Would it surprise you there were no seventh grade members of the bell maintenance crew? A. Somewhat. Q. You know, Mr. [Doe], don't you, that your testimony is completely false because there were only eighth grade boys who were members of the bell maintenance crew? A. No, my testimony isn't false. Q. Your version of what happened with that bell choir practice could not possibly have happened. Do you understand that? A. How couldn't it have ... Assistant District Attorney Mark Cipolletti: Objection, argumentative. Judge Ceisler: Objection sustained. It is argumentative. McGovern cut short his cross-examination that day, possibly because he didn't feel the jury was with him. Prosecutor Cipolletti was happy the cross from both defense lawyers only lasted two hours. "There was just so much more," he said with a big smile. When your opponent is that happy, you just made a mistake. McGovern and Shero's lawyer, Burton A. Rose, should have kept on grilling the witness. That cross examination should have gone on for days until the defense lawyers got what they needed. Who cares whether the jury was with them or not? The jury would have had to notice multiple shutdowns, if Billy was caught in more lies. Hindsight being 20-20, the defense should also have fired off every weapon they had in their arsenal that went unused. The meticulous monthly calendars kept by Billy's mother that didn't show any early Masses the entire fifth-grade year when Billy claimed he was raped by Father Engelhardt after an early morning Mass at St. Jerome's. The church register of funerals that showed Father Avery didn't say a funeral Mass at St. Jerome's during Billy's entire fifth grade year, when Billy claimed Father Avery assaulted him after a funeral Mass. The police statement Billy's older brother gave that contradicted Billy's testimony. The defense also should have called to the stand the drug counselor who told police that victims of abuse don't usually open up the way Billy Doe did, and that the word "sessions" was drug rehab lingo. It was not, as Billy had claimed, a code word used by priests when they're talking about raping an altar boy. THE DEFENDANTS Ok, we're trying to leave no stone unturned here. After the trial, there was plenty of criticism that the defense lawyers made a mistake by not putting the defendants up on the witness stand to tell the jury they didn't do it. From what I saw on sentencing day, those defense lawyers made the right call. Both defendants were not-ready-for-prime-time players. Father Engelhardt is a 66-year-old priest who took a vow of poverty. He lives in a different world than the rest of us. With his life on the line, Father Engelhardt spoke in the quiet, unexcited tones of a former history teacher and priest of more than 40 years. He talked about his career and his faith. Some of it was moving. It was a few points of light, when what was needed was a lighting bolt from the sky. But you can't be anybody but who you are. Bernard Shero made the mistake of trying to debate the prosecutor. Wow, did that not go over. The judge slapped him down. "I'm frustrated," Shero told the judge. In his defense, sending a guy to jail for a crime that never happened will probably do that to you. Shero wound up telling the judge about his post-teaching career as an Avon salesman, and about a note he got from a couple he befriended who still believe he's innocent. Very underwhelming. THE JUDGE The trial went bad during the first few moments for the defendants when the court crier had them stand while she read an extra offense for each man that they weren't charged with. The judge's response: hey, no big deal, we'll get it right eventually. Let's keep it moving. Throughout the trial, the judge seemed far more preoccupied with staying on schedule, rather than worrying about whether a couple of notorious defendants already tarred and feathered by the media and a dishonest grand jury report were getting railroaded in her courtroom. She refused to delay the trial to allow the defense to bring Billy's older brother in to testify. The jurors wanted to hear from the older brother, according to a note they sent the judge. The judge had to see the trial I watched. She had to see all the reasonable doubt. It would have been a courageous call for this judge to say sorry folks, this conviction is just not supported by the evidence. What was needed was the wisdom of Solomon, not the prevailing wisdom. Instead, this judge said the discrepancies in Billy Doe's various accounts didn't shock her conscience. But she was shocked by the leniency of the sentencing guidelines. To show how much prosecutorial Kool-Aid she was drinking, the judge dismissed Billy Doe's initial crazy statements to the archdiocese social worker because, the judge said, Billy supposedly was "ambushed and under the influence of heroin." The victim told the grand jury he had just gone to the methadone clinic that morning, and was driven home by his father the police sergeant. When they got home, two archdiocese social workers knocked on the door and called Billy Doe on his cell phone. Billy remembered his father telling him not to answer the door or his cell phone. Billy testimony --both to the grand jury and the jury in the Engelhardt-Shero trial -- was that he disobeyed his father, snuck out of the house, and told the social workers to drive down the road, where he willingly got into their car. Billy told the grand jury he knew the two social workers worked for the archdiocese, and recalled one of them may have been taking notes. And then, the heroin must have kicked in, because the moment after he got into that car, it all got hazy, and Billy Doe conveniently forgot the crazy stories he told the social workers. Where did he get the heroin judge, at the methadone clinic? Did his father pick up some smack for Billy on the way home from the methadone clinic? Did Billy Doe have 56 bags of heroin stashed at his house? In the grand jury and in Judge Ceisler's courtroom, Billy Doe was never called upon to explain any of that. But the judge didn't need any explanation. Like the D.A., she had bought Billy's B.S. The judge read aloud her sentences: 6 to 12 years for Engelhardt and 8 to 16 years for Shero. It was a decision that pleased all those people in the crowd with ribbons pinned on their chests. It was also the easy way out. And the dishonest one. Judge Ceisler, the trial I witnessed in your courtroom shocked my conscience. Especially the final moments of that sentencing hearing. The judge had just hammered the defendants with long jail terms for crimes that never happened. The families of both men began sobbing in the courtroom. The court crier, previously noted for her inaccuracy in reading the actual charges against the defendants, went over to the grieving relatives and ordered every sobbing one of them to leave. "We're not allowed to cry?" asked Tracey Boyle, Father Engelhardt's niece. No, Tracey. In the courtroom of Ellen Ceisler, when the judge sends your beloved uncle the priest off to jail for a crime he didn't commit, you're not even allowed to cry about it. Does that shock anybody else's conscience?
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