Bevilacqua’s Videotaped Testimony Might Now Be Heard at Trial

By Nancy Phillips
Philadelphia Inquirer
February 1, 2012

http://articles.philly.com/2012-02-01/news/31013285_1_abusive-priests-defense-lawyers-abuse-cases

A savvy move by prosecutors could mean that the late Cardinal Anthony J. Bevilacqua will speak from beyond the grave at the forthcoming criminal trial of three priests accused of endangering or abusing children, legal experts said Wednesday.

Bevilacqua, who died Tuesday at age 88, testified on videotape late last year about the church's handling of sex abuse allegations against priests in the Philadelphia Archdiocese during his 15-year-tenure as its leader.

The tape of the cardinal answering questions from prosecutors and defense lawyers may now be admitted at trial, experts say.

"It comes in," said James A. Cohen, a professor at Fordham law school and a former defense lawyer. Preserving Bevilacqua's testimony on tape should enable jurors to hear from him in his absence, he said.

"It was wise," Cohen said of the decision to capture Bevilacqua's words months ago as his health was failing. "It was prescient - unfortunately for the cardinal."

By contrast, Bevilacqua's lengthy grand jury testimony about the same events likely will not be admissible because defense lawyers were unable to cross-examine him at that time.

Defendants have a constitutional right to confront and question potential witnesses.

A key question is how helpful the cardinal's videotaped testimony will be to either side in the trial.

"I don't think you can tell whether it's good or bad for the case - prosecution or defense - until you know what he said," said Walter M. Phillips Jr., a criminal defense lawyer and former prosecutor.

Bevilacqua was questioned in the case of Msgr. William J. Lynn, his former secretary for clergy, who is charged with child endangerment and conspiracy and accused of protecting and enabling abusive priests.

The Rev. James J. Brennan and former priest Edward Avery, who will stand trial along with Lynn, are charged with raping boys in separate incidents in the 1990s. All three men have pleaded not guilty.

The videotape of Bevilacqua is under seal, and lawyers in the case are precluded from discussing it under a gag order imposed by Common Pleas Court Judge M. Teresa Sarmina, who is hearing the case.

In a court filing in December, Lynn's lawyers provided a glimpse of Bevilacqua's testimony when they described him as bewildered and struggling "to the point of tears" to recall how the archdiocese had handled sex abuse cases during his tenure.

Defense lawyers Thomas A. Bergstrom and Jeffrey M. Lindy wrote that the cardinal was frail and forgetful as he testified and said he could not recall key aspects of sex abuse allegations made on his watch.

"For the most part," they wrote, "his memory bank was an empty room."

Sarmina ordered Bevilacqua to testify on videotape after prosecutors, citing the cardinal's failing health, asked permission to question him while he was still well enough to answer.

Lawyers for the cardinal countered that he suffered from cancer and dementia and was too ill to be questioned. After a hearing, Sarmina found the cardinal competent to testify and ordered him to sit for a videotaped deposition at which he was questioned by prosecutors and cross-examined by defense lawyers.

Legal experts say that preserved his words for use at trial.

"Witnesses die," said Jules Epstein, a professor at Widener Law School and a former criminal defense and civil rights lawyer. "All sorts of things can happen in a criminal case that arguably run against the defendant's right of confrontation."

While it is not uncommon for defense lawyers to argue against the admission of videotaped testimony, legal experts said that in general, the law favors admitting such evidence when a witness dies or otherwise becomes unavailable.

"If it's a full and fair cross [examination], the jury gets to hear it," said Epstein. "That doesn't mean jury has to believe it. It just means they're entitled to hear it."