Trying to Read the Tea Leaves in Priests' Trial

By John P. Martin
Philadelphia Inquirer
June 10, 2012

The notes trickled out, a few each day, from the jury room behind Courtroom 304.

Define attempted rape. Explain endangerment and pedophilia. Send in the files, a marker board, and easel.

Trying to interpret the signals during deliberations in the landmark child sex-abuse trial of two Archdiocese of Philadelphia priests may be a fool's errand, experts say. What was clear after one week was that the Common Pleas Court jury was immersed in its task.

"This is a jury that's been asking a lot of questions, which means that they are engaged," said Edward D. Ohlbaum, a professor at Temple University's Beasley School of Law.

The seven men and five women met for nearly 25 hours over five days to consider the charges against Msgr. William J. Lynn and the Rev. James J. Brennan. They sent more than a dozen questions and requests to Common Pleas Court Judge M. Teresa Sarmina in their first four days, seeking guidance on the law or pieces of evidence.

The panel was silent Thursday before breaking for the weekend. Deliberations resume Monday afternoon.

The two codefendants are linked by a single endangerment count, but the jury's questions suggest it might view the cases as distinct.

Lynn, the former secretary for clergy under Cardinal Anthony J. Bevilacqua, is the first church official nationwide to be tried for allegedly enabling or covering up abuse.

He is accused of endangering children by placing Brennan and another priest, Edward Avery, in parishes in the 1990s despite signs they might abuse children. Lynn's lawyers have argued that only his bosses in the church had authority to assign or remove abusive priests.

The question of others' culpability might make jurors see Lynn's case as more complex, "more like a corporate fraud case," according to Michael A. Schwartz, a former federal prosecutor who works at the Pepper Hamilton law firm.

By contrast, the charge against Brennan is more common. He is accused of and has denied trying to rape a 14-year-old boy in 1996. That type of allegation often falls on whether jurors believe the accuser, lawyers say.

Brennan is listed first on the verdict sheet the jurors must fill out, and he appeared to be a priority during their first full day of deliberations Monday. They asked to see his evidence file and for the definition of attempted rape. Then they wanted a definition of rape.

"It sounds like they might have a conceptualizing of what happened," said Melissa M. Gomez, a Philadelphia jury consultant with no ties to the case. She said jurors often easily agree on the facts of an incident but get hung up on whether it fits the crime on their verdict form.

On Tuesday, the panel sought another clarification on Brennan's case with what sounded like a loaded question: To convict him of endangerment, they asked, did they need to conclude that he endangered other children besides his accuser?

Yes, the judge told them.

To Ohlbaum, the Temple professor, that suggested momentum in the jury room.

"If you're hedging your bets, the educated guess would be that they finished with Brennan," he said, quickly adding, "But, who knows?"

The jurors also sought information that appeared to apply only to Lynn. They asked for clarification of what it means to agree in a conspiracy.

The monsignor is accused of conspiring with Avery and other archdiocesan officials to endanger a 10-year-old altar boy whom Avery sexually assaulted in a Northeast Philadelphia church.

On Wednesday, jurors also asked for evidence files related to 13 accused priests whose cases Lynn had reviewed during his tenure in the clergy office.

Prosecutors had introduced those allegations to suggest Lynn's recommendations for Brennan and Avery fit a long-standing practice by church leaders of letting abusive priests remain in ministry.

Jurors also wanted definitions of pedophile and ephebophile. The terms generally describe adults who are sexually attracted to children or teens, and the diagnoses emerged in some of the hundreds of confidential priest personnel records Lynn drafted or reviewed.

The lawyers and judge didn't always agree on how to respond to jurors. On the definition of pedophile, for instance, they decided to say nothing, because neither side had presented experts on the topic during trial.

"The parties chose how they were going to present the case," Alan Tubber, one of Lynn's lawyers, told the judge. "I think they have to rely on the evidence."

During 11 weeks of trial, jurors rarely appeared bored or confused; some scrawled on page after page in court-issued notebooks.

As jurors' questions began to pile up during deliberations, about two dozen reporters and other observers cycled in and out of the courtroom, trading guesses as to what they meant. Some speculated one juror looked as though she had been crying.

Bound by a gag order, prosecutors and defense lawyers didn't try to read the tea leaves.

Doing so is usually an exercise in futility, said Rocco C. Cipparone, who has tried cases as a prosecutor and defense lawyer for more than two decades.

"It's all speculative," he said, "because you don't know if that question being posed is to appease one juror or 11 jurors."

Nor can anyone predict how long the jury will keep talking. The longest jury deliberation in any of Cipparone's cases lasted six days, when he represented one of the men convicted of plotting a terror attack at Fort Dix.

Others noted that Sarmina was unlikely to get in the way of the deliberations, regardless of the length, unless jurors signaled an impasse. Even then, she was likely to press them to continue.

"This was a case that was full of emotion on both sides," said Schwartz, referring to gut-wrenching testimony from nearly 20 alleged abuse victims. "The length of this deliberation shows that this jury is trying to look past the emotion."



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