Msgr. Lynn's Lawyers: D.A. " Hysterical," Resorting to " Histrionics"

By Ralph Cipriano
Big Trial
February 11, 2014

http://www.bigtrial.net/2014/02/msgr-lynns-lawyers-da-hysterical.html


Lawyers for Msgr. William J. Lynn say the Philadelphia district attorney is resorting to hysteria and histrionics in his legal appeal to send their client back to jail.

District Attorney Seth Williams has asked the state Supreme Court to overturn a unanimous Dec. 26th opinion from a panel of three Superior Court judges that reversed Msgr, Lynn's prior conviction on one count of endangering the welfare of a child. 

In its appeal to the state Supreme Court, the district attorney said the reversal by the Superior Court panel sent a "dismal message" to the survivors of sex abuse. Also, because of the Superior Court's overly broad language and "misapplication of law," the district attorney warned that the state may not be able to protect future victims of child abuse.

Lynn's lawyers saw it differently.

"The Commonwealth willfully the distorts the Superior Court's decision, which "simply concluded" that the state's original child endangerment law did not apply to Lynn, as he was "neither a parent, guardian, nor other person supervising the welfare of a child," Thomas A. Bergstrom and Allison Khaskelis argue in their 27-page response to the D.A.'s petition filed today.

"In the absence of law and fact to support its position, the Commonwealth hopes to trick this Court into hearing its appeal on the basis of hysterics," Bergstrom and Khaskelis argue to the state Supreme Court. Lynn's lawyers also accuse the district attorney of employing "histrionics" and making "an irrational appeal to emotion."

Lynn, the Archdiocese of Philadelphia's former secretary for clergy, was convicted 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 watch. Lynn had served 18 months of a 3 to 6 year sentence when he was set free on $250,000 bail after the Superior Court reversed his conviction. The archdiocese put up a $25,000 bail deposit, much to the chagrin of the D.A.

Lynn is currently under house arrest at St. William's parish in Northeast Philadelphia. He must wear an electronic monitoring bracket on his ankle at all times. He is restricted to staying on two floors of the parish rectory. He needs his parole officer's permission to leave the rectory and visit his doctors or lawyers.

The district attorney, in appealing to the state Supreme Court, wants Lynn to be sent back to jail to serve out the remainder of his sentence.

In their response to the D.A.s appeal to the state Supreme Court, Lynn's lawyers delve into the factual history of the case. It began in 1992 when a 29-year old man wrote the secretary for clergy to say he had been molested as a teenager back in the late 1970s by Father Edward V. Avery.

Avery was a "close personal friend" of the victim and his family for many years, Lynn's lawyer say. "It was a relationship that began when Avery was a priest in the parish" where the victim's family belonged.

When the victim was 15, after a night in a bar, he was groped by the priest while the two shared a bed. At the time, the teenager was "Avery's only known victim," Lynn's lawyers wrote.

When Lynn confronted Avery about the accusation, he denied it. Lynn, however, recommended to Cardinal Anthony J. Bevilacqua that Avery undergo an assessment as well as inpatient treatment at St. John Vianney, the archdiocese's psychiatric hospital. Avery was hospitalized for more than eight months. He was diagnosed as an alcoholic, but according to his doctors, did not have any sexual disorder. Upon treatment of eight months of inpatient treatment, the doctors pronounced Avery "fit to return to ministry."

Avery's therapists did recommend that he return to a ministry with "no direct contact with children." Bevilacqua assigned Avery as chaplain to Nazareth Hospital, with a residency at St. Jerome's parish in Northeast Philadelphia. One of the reasons the cardinal chose St. Jerome's was because it had "a large rectory where several other priests could observe Avery," Lynn's lawyers wrote.

Lynn put together an "aftercare integration team" that included Father Graham, pastor of St. Jerome's.  Lynn told Father Graham "the details of Avery's past and the nature of Avery's treatment, asking Father Graham to be vigilant of Avery," Lynn's lawyers wrote.

From the time Avery was discharged in 1993 until 1998, Avery was receiving outpatient treatment at St. John Vianney. Avery's therapists regularly wrote to Lynn, saying that Avery was "progressing well in therapy." Avery attended Alcoholics Anonymous meetings for two years. He also received a Ph.D. in divinity, which his therapists saw as a positive sign that he was channeling his energies away from children.

Avery moonlighted as a disc jockey. That's what preceded the 1970s incident where he molested the 15-year-old. The teenager had assisted Avery in his disc jockey duties at Smokey Joe's, a bar on the University of Pennsylvania campus. The night the 15-year-old had been molested, he had been drinking lots of free beer.

In their response to the district attorney, Lynn's lawyers note that "The Commonwealth's Petition places a great deal of emphasis on the fact that Avery continued to act as a disc jockey following his discharge from St. John Vianney and during his chaplaincy at Nazareth Hospital. Yet the [D.A.'s] petition fails to mention that the record demonstrated that Avery was a disc jockey at weddings and hospital events and did not use children to assist him."

Lynn's lawyers also note that the district attorney's "petition neglects to mention that Avery's therapists were aware of his disc jockeying activities and worked on this in therapy. Significantly, the record is clear that Avery did not abuse [Billy Doe] while disc jockeying or through any activity that remotely involves disc jockeying."

Under Bevilacqua, the archdiocese policy was that only priests diagnosed with pedophilia and ephebophilia were permanently removed from ministry. [Pedophilia is defined as a person who has a sustained sexual orientation toward children aged 13 or younger; ephebophilia targets an older group, generally aged 15 to 19]. Then came the Boston sex abuse scandal, and some new ground rules for abusive priests.

Avery was removed from ministry as a result of "a new more rigorous archdiocesan policy" in Philadelphia, Lynn's lawyers wrote. Msgr. Lynn had "no indication whatsoever that Avery had contact with children in his ministerial duties," Lynn's lawyers maintain. Father Graham had complained that Avery was "unwilling  to help out at the parish and had fewer duties than other priests living at St. Jerome's rectory," Lynn's lawyers wrote. Avery largely confined himself to his chaplain duties.

In 2002, after the archdiocese adopted a "zero-tolerance" policy with regards to sex abuse, Lynn asked Avery to undergo a second psychological assessment. This time, Avery's therapists noted a "history of alcohol abuse," but said the priest "did not present as an individual with a sexual disorder."

Father Graham told therapists that he "had never observed Avery around young people."

Avery was removed from ministry in 2003 and busted down to lay person because of his molestation of the 15-year-old during the late 1970s. In 2009, a victim a grand jury labeled "Billy Doe" came forward to charge that Avery had sexually abused him during the 1998-99 school year, when he was a 10-year-old altar boy.

Unlike the previous victim, Billy Doe "recounted a story of random abuse, by a priest whom neither he nor his parents had a relationship," Lynn's lawyers wrote. "In sum, [Lynn] did not suspect, and had many valid reasons not to suspect, that Avery was anything but rehabilitated. He certainly never foresaw that the tragic events leadeng up to [Billy Doe's] abuse would take place."

In the criminal case, Billy Doe's credibility was not contested, as Lynn's lawyers chose not to cross-examine the alleged victim. But Lynn's lawyers bring up an interesting point, a story of random abuse, by a priest whom neither he nor his parents had a relationship."

In Billy Doe's case, there was none of the usual "grooming" that accompanies a predator plying a future victim with gifts and attention, etc. In Avery's prior molestation case, the priest had been a close friend of the victim and his family for many years before the boy wound up in the priest's bed. The victim, a soft-spoken 49-year-old doctor, testified on April 25, 2012 in the Lynn case. He told the jury he had known Avery since he was a sixth grader. "I felt betrayed," the victim said of the abuse. which happened at age 15. "I got a lot of affirmation from him," the victim said of Father Avery.

In the Billy Doe story, three random predators who don't have a relationship with the victim or his parents strike without warning. In Billy Doe's story, two predator priests confide in each other about the crimes they are committing with Billy, and pass the victim between them.

These allegations, if true, would be something new under the sun in the Archdiocese of Philadelphia. Thanks to the 2005 grand jury investigation, the archdiocese's secret archive files were pried loose by multiple subpoenas from the office of then District Attorney Lynne Abraham. The secret archive files were 45,000 pages of records cataloguing 40 years of sex abuse in the archdiocese, specifically the sins of 169 predator priests, as well as the suffering of hundreds of innocent child victims. The secret archive files were the centerpiece of the Lynn criminal case, with past sex abuse cases in the archdiocese taking up by a defense count 26 of 32 trial days. On the witness stand for many of those days, the district attorney's detectives read the secret archive files into the court record.

Billy Doe isn't mentioned in the secret archive files, as he came forward in 2009 to make his allegations. But not once in the secret archive files was there an instance of a predator priest passing on a helpless child victim to another predator priest.

Regarding the district attorney's appeal to the state Supreme Court, the court will decide to either take the criminal case for review, or pass on it. While Billy Doe's credibility isn't an issue in the criminal case, it's expected to be the big issue in the civil case of Billy Doe v. the Archdiocese of Philadelphia et al., scheduled for trial on June 5, in Philadelphia Common Pleas Court.

In the civil case, Billy Doe and his parents are seeking money from the archdiocese to compensate for Billy's suffering.

Billy Doe's lawyers sought to prevent their client from being deposed, or having to testify in the civil case by seeking summary judgment, based on the criminal convictions of Lynn, Father Charles Engelhardt, and former Catholic school teacher Bernard Shero, as well as the guilty plea entered by Avery.

The archdiocese's lawyers, however, said the archdiocese was not on trial during the criminal cases.

"The Archdiocese was not a party ... to the criminal proceedings, did not have a full and fair [or any] opportunity to litigate, and is not bound by the results or verdicts in any of the proceedings," wrote Nicholas M. Centrella on behalf of the archdiocese on June 27, 2013. Billy Doe's "efforts to bind the Archdiocese with there results or verdicts in the criminal proceedings violate the rights of the Archdiocese to due process under and a trial by jury, as well as First Amendment rights."

On July 12, 2013, Judge Sandra Mazer Moss entered an order that denied "in all respects" the motion for summary judgment.

In the appeal to the state Supreme Court, the district attorney claimed that Msgr. Lynn "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."

The D.A. argued that "the Superior Court errs in holding that a church official who systematically reassigned pedophile priests in a manner that risked further sexual abuse of children did not endanger the welfare of children."

In their response, Lynn's lawyers cry foul.

"This is a distortion of the holding at best and at worst, a complete fabrication that insults the intelligence and integrity of the Superior Court," Lynn's lawyers argue.

The original 1972 state law that Lynn was convicted under 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."

The Superior Court opinion reversing Lynn's conviction held that the original child endangerment law "did not apply to him [Lynn] as he was neither a parent, guardian, nor other person supervising the welfare of  a child," Lynn's lawyers wrote. In addition, the Superior Court held that the district attorney did not meet its burden in proving that Lynn was an accomplice in Avery's crime of endangering the welfare of child [EWOC].

"Contrary to what the Comomnwealth would lead this Court to believe, [Lynn] was never charged with or convicted of reassigning pedophile priests," Lynn's lawyers wrote. He was charged with endangering the welfare of a child, and conspiracy to endanger the welfare of a child.

Avery was never diagnosed as a peodplhie and was not reassigned "as part of a general scheme of concealment," Lynn's lawyers argue.

The jury acquitted Lynn of one count of conspiracy to commit EWOC, and the trial judge, M. Teresa Sarmina, dismissed another count of conspiracy to commit EWOC as unproven.

Lynn's lawyers took a dim view of the D.A.'s argument that the Superior Court opinion reversing Lynn's conviction will prevent the state from protecting future victims of abuse.

"The Commonwealth's accounts of the perils of the precedent set by the Superior Court's decision is baseless and illogical," Lynn's lawyers write. "There is no need for this Court to consider this position. In the aftermath of the 2007 amendment to the EWOC statute, which includes a new category of potential defendants, there will be few, if any prosecutions like this case, based on the old version of the statute. The Court's precious resources would be wasted on considering a case with no prospective value."

The state amended the EWOC law in 2007 to include supervisors such as Lynn.

"It is, frankly, astonishing, that the Commonwealth showed a modicum of restraint and did not take the small step to accuse a panel of thoughtful and distinguished jurists of facilitating EWOC themselves," Lynn's lawyers wrote.

The district attorney's warning that the amended statute "will not protect children has absolutely no grounding in the words of the Superior Court opinion or the language of the new statute," Lynn's lawyers wrote. "It is nothing but an irrational appeal to  emotion that should be ignored."
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